Precision Foam Fabricators, Inc. v. Thomas Company, Inc. et al

Filing 258

MEMORANDUM OPINION. Signed by Judge Mary Pat Thynge on 11/19/20. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DELAWARE STATE UNIVERSITY,

:
:
Plaintiff,
:
:
v.
:
:
THOMAS COMPANY, INC., LIBERTY
:
MUTUAL INSURANCE COMPANY,
:
RICHÄRD+BAUER, LLP, CZAR
:
ENGINEERING, LLC, and PRECISION
:
FOAM FABRICATORS, INC.
:
:
AND
:
:
WHITING-TURNER CONTRACTING, CO., :
:
AND
:
:
ANTHONY P. ASHFORD,
:
:
Defendants.
:

C. A. No. 15-1144-LPS-MPT

MEMORANDUM OPINION
This Memorandum Opinion addresses several motions submitted by the parties
in what began in state court as a simple two-sided action based on alleged nonpayment due under a contract which was removed to this court. Over the years, the
case was stayed, informal settlement discussions held, formal mediations with the court
and with an outside expert conducted, parties incrementally added and finally realigned;
resulting in a case that has morphed into a star-crossed constellation of eight parties
asserting a plethora of claims, counter-claims, and cross-claims against and among
each other. At this point, fact and expert discovery have concluded and the court’s
determinations herein resolve many issues in this long, but ongoing, saga.

I.

PROCEDURAL HISTORY
This action was initiated on December 11, 2015 by the filing of a Notice of

Removal in this court1 of a complaint originally filed in Delaware Superior Court by
Precision Foam Fabricators, Inc. (“Precision Foam” or “PFF”) against Thomas
Company, Inc. (“Thomas” or “TCI”) and Liberty Mutual Insurance Company (“Liberty
Mutual”) that sought sums allegedly due to Precision Foam for the fabrication of certain
insulated metal wall panels in connection with construction of the Optical Science
Center and Applied Research (the “OSCAR Facility” or “Project”) at Delaware State
University (“DSU”).2
On January 4, 2016, Thomas filed a Third-Party Complaint against DSU.3 On
February 19, 2016, Third-Party Defendant DSU answered, and filed a Counterclaim
against Thomas.4 DSU’s Counterclaim, and other claims that followed, allege
significant defects in the panel wall installed at the OSCAR Facility.5 On February 27,
2017, Thomas filed a Fourth-Party Complaint against Czar Engineering, LLC (“Czar”)
arising out of the defect allegations raised by DSU.6 On March 10, 2017, DSU filed a
Third-Party Complaint against Richärd+Bauer, LLC (“Richärd+Bauer” or “R+B”), the
architect for the OSCAR Facility and the panel wall, also arising out of the alleged

1

D.I. 1.
Id., Ex. A (Precision Foam Fabricators, Inc. v. Thomas Co., Inc., C.A. No.
N15C-11-115-CLS (Del. Super. Nov. 13, 2015)); see also D.I. 73 (Consent Motion to
Realign Parties) at 2 ¶ 1.
3
D.I. 8; D.I. 73 ¶ 2.
4
D.I. 15; D.I. 73 ¶ 2.
5
Id.; D.I. 73 ¶ 3.
6
D.I. 35; D.I. 73 ¶ 4.
2

2

defects in the panel wall.7 Various other cross-claims by the parties against and among
each other followed.8 On April 27, 2019, the parties filed a Consent Motion to Realign
Parties (“Motion to Realign”)9 and, contemporaneously, DSU filed a Second Amended
Complaint joining The Whiting-Turner Contracting Company (“Whiting-Turner” or “W-T”)
and Anthony P. Ashford (“Ashford”) as additional parties in connection with the defect
claims.10
The Motion to Realign suggested in the then-current posture that the def ect
claims among and between the various parties predominated the litigation, and it was
no longer simply about payment allegedly due to Precision Foam.11 Because DSU’s
defect allegations had become the heart of the litigation, and in light of the complex and
confusing posture of the parties at that juncture, the parties jointly requested they be
realigned to properly organize the practical posture of the parties and their claims
appropriately, and to simplify the procedural posture of the matter for the court and the
parties.12
The court ordered realignment of the parties on May 1, 2018, such that DSU is
plaintiff and counter-defendant to the extent any counterclaims are filed against it; and
Richärd+Bauer, Liberty Mutual, Thomas, Czar, Whiting-Turner, and Ashford are

7

D.I. 40; D.I. 73 ¶ 5.
D.I. 73 ¶ 6.
9
D.I. 73.
10
D.I. 74 (Third Party Second Amended Complaint (“SAC”)). Other than filing a
pro se Answer to the SAC, see D.I. 89, and being deposed on March 15, 2019, see D.I.
243-7, Ashford has not meaningfully participated in this action.
11
D.I. 73 ¶ 8.
12
Id.
8

3

defendants, counter-plaintiffs, and cross-claimants, where appropriate.13
On February 21, 2019, the parties consented to this m agistrate judge conducting
all proceedings and entering a final order on case dispositive motions, and those
motions were referred on in accordance with 28 U.S.C. § 636(c). 14
On June 11, 2019, DSU filed a Consent Motion for Leave to File Amended
Complaint for the limited purpose of adding defendant Thomas to SAC Count III
(Negligence) which had been named in DSU’s original negligence counterclaim and
inadvertently omitted as such in the SAC. 15 DSU’s motion was granted on June 14,
2016,16 making Delaware State University’s Third Amended Complaint (“TAC”)17 its
operative pleading.
The TAC asserts four causes of action: Count I (Breach of Contract), Count II
(Claim on the Performance Bond), Count III (Negligence), and Count IV (Unjust
Enrichment).18
The co-defendants each broadly assert cross-claims against and among each
other for indemnification and/or contribution. 19 Thomas also asserts claims for breach
13

So Ordered D.I. 73 Consent Motion (Docket Entry May 1, 2018); D.I. 73 at 3
(Wherefore clause). In the separate discussions of each motion, the court may
generally refer to DSU as “plaintiff” and the parties advancing or opposing the particular
motion collectively as “defendant(s)” and/or “movant(s).”
14
D.I. 147.
15
D.I. 180.
16
D.I. 181.
17
D.I. 180-2.
18
Id. Count I is alleged against Richärd+Bauer, Whiting-Turner, Thomas,
Precision Foam, Czar, and Ashford. Id. ¶¶ 48-56. Count II is alleged against Liberty
Mutual. Id. ¶¶ 57-60. Count III is alleged against Thomas, Precision Foam, Czar, and
Ashford. Id. ¶¶ 61-69. Count IV is alleged against Precision Foam, Czar, and Ashford.
Id. ¶¶ 70-72.
19
See D.I. 49 (PFF); D.I. 77 (R+B); D.I. 97 (W-T); D.I. 98 (Czar); D.I. 103 (TCI).
4

of contract, unjust enrichment, and breach of warranty against Precision Foam.20
Presently before the court are seven motions for summary judgment filed by
DSU,21 Richärd+Bauer,22 Whiting-Turner,23 Thomas,24 Precision Foam,25 and Czar.26
Whiting-Turner and Precision Foam also filed a Joint Motion to Strike Expert Report of
Thornton Tomasetti, Inc. and Mark E. Dannettel. 27
II.

BACKGROUND–STIPULATED FACTS28
1. This case concerns Structural Insulated Panels or “SIPs” and their integration

into an overall wall system that includes the SIPs, the design, construction and
installation of the SIP connections to the building structure, and other related elements

20

D.I. 103.
D.I. 211.
22
D.I. 203.
23
D.I. 208.
24
D.I. 207; D.I. 217. On July 9, 2020, DSU informed the court that it had settled
its claims against TCI and Liberty Mutual, as well as TCI’s claims against DSU (the
“DSU-TCI Settlement”). D.I. 255. On July 29, 2020, the court granted the voluntary
dismissal of DSU’s claims against TCI and Liberty Mutual, and TCI’s claims against
DSU (the “Settled Claims”). D.I. 257. “The sole effect of this order is dismissal of the
Settled Claims. The action remains pending and unaffected with respect to the
remaining claims.” Id. At the time of the DSU-TCI Settlement, TCI had a pending
motion seeking, inter alia, summary judgment that DSU’s proposed repairs to the Panel
Wall System constitute economic waste. D.I. 217. That part of TCI’s motion is denied
as moot. DSU does not have a pending motion for summary judgment against TCI.
25
D.I. 205.
26
D.I. 215.
27
D.I. 201.
28
These facts are taken from the stipulated facts filed by all parties for purposes
of the their respective summary judgment motions. D.I. 195 (“Stipulated Facts”). The
documents referenced therein are cited as “Stip. Ex.” and designated by their
deposition exhibit numbers inasmuch as all exhibits were consecutively numbered
throughout the depositions. Id. at 2 n.1. The parties submitted their Joint Exhibits and
Deposition Designations on October 4, 2019. See D.I. 243; D.I. 243-1 through 243-19.
For consistency, citation to “Stip. Ex.” is maintained throughout the discussion of the
parties’ respective motions.
21

5

(such as connectors, sealants, and the like) (collectively, the “Panel Wall System,” or
“Wall System”) installed as part of constructing the OSCAR Facility, or Project, on
DSU’s main campus in Dover, Delaware.29
2. This case also involves the structural design of the panel connections with the
OSCAR Facility design.
3. The OSCAR Facility is a three-story building that houses classrooms,
laboratories, and research facilities.30
4. The Wall System that comprises the exterior façade is comprised of
composite panels consisting of the following:
(a) the exterior side of the panel is stainless steel with a mirrored finish;
(b) the interior side of the panel is galvanized steel that is corrugated and
painted; and
(c) “sandwiched” between the exterior and interior panels is rigid,
expanded polystyrene or “EPS” insulating foam that is glued to the interior
and exterior metal sheets with 3M® bonding material.
5. The panels are approximately 50 feet tall.
6. The Wall System is connected to the facility’s steel structure.
7. On or about January 20, 2012, DSU retained R+B as the Architect of Record
for the OSCAR Facility pursuant to a contract titled AIA® Document B132™–2009,
Standard Form of Agreement Between Owner and Architect, Construction Manager
as Adviser Edition. (D.I. 243-1, Stip. Ex. 47.)31
29

The building’s exterior walls consist of a combination of glass “curtain walls”
and the Wall System at issue. D.I. 195 at 2 n.2.
30
See D.I. 243-5 (OSCAR Facility photographs), Photograph 1-A.
31
Throughout this opinion, all emphases are in the original document cited
unless otherwise noted.
6

8. As the Architect of Record, R+B prepared the architectural drawings for the
facility, which include design drawings for the Wall System. Portions of the Wall
System drawings are attached as D.I. 243-1, Stip. Ex. 7, Drawing Pages A11.1 through
A11.3. (See also, A11.0 through A11.8.)
9. R+B also issued Specification Section 07435 - INSULATED METAL WALL
PANELS (Addendum 3, 11/14/2013) for the Wall System. (See D.I. 243-1, Stip. Ex. 3,
“Specification 07435”.)
10. R+B used Permatherm, Inc. (“Permatherm”) as its basis of design for the
panels, and Specification 07435 listed both Permatherm and PFF as acceptable panel
manufacturers.
11. Specification 07435 provides, in pertinent part:
!

Part 1, General: Construct panel system to provide for expansion
and contraction of component materials without causing buckling,
failure of joint seals, undue stress on fasteners, other detrimental
effects to the panel system or adjacent building systems, or
warping of faces of panel system. (D.I. 243-1, Stip. Ex. 3 at DSU
006176.)

!

General Paragraph 1.4 – Performance Requirements: Design and
construct panels to meet requirements as indicated.
A. Structural and Wind load Tests:
1. Design panel composition to resist wind load mandated
by code, with deflection limit of L/240.
2. No permanent damage to panels or connections when
subjected to 1.5 times the design wind pressures for both
inward and outward.
B. Thermal Performance:
1. Panels shall produce no post manufacturing off gassing
which could result in loss of future thermal resistance and
7

must have a certified Long Term R-Value (LTR) . . . . ¨
!

Submittals Paragraph 1.5.D – “Engineered Drawings and
Calculations: For installed products indicated to comply with
certain design loadings, include structural analysis data and design
prepared by an independent third party signed and sealed by the
qualified professional engineer responsible for their preparation.”

!

Quality Assurance Paragraph 1.6.A – “Manufacturer’s
qualifications: Company specializing in manufacturing all required
aspects of insulated metal panel production.
1. No less than 10 years’ experience in the actual
production of specified products.
* * * * *
3. Successfully completed not less than 100 comparable
projects using this system.”

!

Quality Assurance Paragraph 1.6.B – “Installer’s Qualifications:
Installer shall be responsible for installation of panel and support
framing as specified . . . to comply with the following: Wind load
engineering to comply with code requirements.”

!

Quality Assurance Paragraph 1.6.D – “Mock-Up: Provide a
mock-up for evaluation of surface preparation techniques, detail
interfaces with other materials, corner condition, edge conditions,
and application workmanship.”

!

Products & Materials Paragraph 2.1.A – “Acceptable
Manufacturers:
a. Permatherm, Inc.
b. Precision Foam Fabricators
c. Or prior approved equal.”

!

Paragraph 2.2.A – “Panel General Requirements: Roll-formed
exterior and interior steel sheet faces laminated to panel grade
Type IX expanded polystyrene (EPS) foam core . . . Insulated wall
panels shall be supplied in widths . . . [as] indicated on drawings.
Panel lengths shall be factory cut to meet required site
dimensions.”

!

Paragraph 2.2.A.1.a – “See drawings for panel thicknesses.”
8

!

Paragraph 2.3.A.1 – “Interior face of wall panels shall be clad with
26 gauge prepainted G90 galvanized steel where indicated.
Smooth face finish.”

!

Paragraph 2.3.B.2 – “Exterior face [indicated] to be polished
stainless steel: clad on weather exposed side with 26 gauge Type
316 stainless steel with #8 polished mirror finish.”

!

Paragraph 2.3.C.1 – “Metal skins shall be thermal-set to the Type
IX EPS insulation. Insulated panels shall be manufactured
individually laminated, insuring uniform adhesion between metal
skins and EPS insulation.”

!

Paragraph 2.3.D.1 – “Wall panels and ceiling panels shall consist
of Type IX Expanded Polystyrene (EPS) insulation, density as
indicated in drawings and as required for loading requirements of
panels.”

!

Paragraph 2.3.H – “Fasteners: Clips, anchoring devices, fasteners,
and accessories for installation of panel system as recommended
by panel manufacturer for the system specified.”

!

Installation Paragraph 3.2.A – “Install in accordance with
manufacturer’s instructions and industry standards.”

!

Adjusting and Cleaning Paragraph 3.4.B – “Replace damaged
panels and other components of work, which cannot be repaired by
finish touch-up or similar minor repair.”

12. On January 12, 2012, DSU and Whiting-Turner entered into a contract titled
AIA® Document C132™ – 2009, Standard Form of Agreement Between Owner and
Construction Manager as Adviser, AIA® Document A232™ – 2009, General
Conditions of the Contract for Construction, Construction Manager as Adviser
Edition, and Section 00730 – SUPPLEMENTARY GENERAL CONDITIONS TO THE
CONTRACT (DSU Designee Tr. 12). (See D.I. 243-3, Stip. Ex. 94; D.I. 243-1, Stip. Ex.
48; and D.I. 243-3, Stip. Ex. 140, respectively.)
13. Whiting-Turner conducted a “descope meeting” with Thomas on November
9

26, 2013.
14. DSU entered into a contract with Thomas on or about December 27, 2013
titled AIA® Document A132™ – 2009, Standard Form of Agreement Between Owner
and Contractor, Construction Manager as Adviser Edition for the Wall System. (See
D.I. 243-3, Stip. Ex. 139.)
15. On or about January 2, 2014, Thomas submitted a Performance Bond
issued by Liberty Mutual for the Wall System project. (See D.I. 243-3, Stip. Ex. 139-A,
AIA® Document 312-A 2010, Performance Bond, dated 12/20/2013 and 01/02/2014
transmittal letter.)
16. On or about January 15, 2014, Thomas made its initial submission of PFF’s
Product Data to Whiting-Turner for review. (See D.I. 243-1, Stip. Ex. 33.)
17. On January 17, 2014, Whiting-Turner forwarded Thomas’s Submittal
Number 07435-01-0 to R+B. (D.I. 243-1, Stip. Ex. 34.)
18. R+B reviewed the PFF Product Data and returned it to W hiting-Turner on
January 23, 2014. (Id.)
19. The PFF product materials submittal was “approved as noted” by R+B on
May 7, 2014. (D.I. 243-1, Stip. Ex. 6.) Those materials state, in part:
!

Engineering Design Data, Section 2.1.1 – “Design and control of
thermal movement, heat flow, water vapor transmission and air
movement in environments where a high level of appearance and
durability are essential. Precision Insulated Panels (hereinaf ter
referred to as PIP) and liners offer systems that will satisfy these
needs economically. The data contained herein should be used f or
selection and identification of insulating panel systems.”

!

Engineering Design Data, Section 2.1.2 – “The purpose of the
design data in this bulletin is to assist the architect and/or eng ineer
10

when considering the use of the PIP. However, the responsibility
for the final design is that of the architect or engineer.”
!

Engineering Design Data, Section 2.6.1 – “Flatness of structural
sandwich panels is affected by dimensional change of the facings.
When the panel is subjected to a temperature differential, the
contraction of the cold facing will cause warping of the panel. A
practice of cutting the interior skin at midpoint of girt is used to
relieve the stress on panels required connection to intermediate girt
lines.”

!

Engineering Design Data, Section 2.6.2 – Calculation for thermal
expansion is provided. “Actual measured deflections are generally
less than predicted due to shear strain of the core; however, the
predicted deflection should be used for design. Addition of
intermediate bracing, to restrain thermal flatness changes is
generally not recommended.”

!

Engineering Design Data, Section 2.9.1 – “Effective design of
connections should provide for the structural function as well as
accommodate thermal movements. In addition, the connections
must prevent excessive moisture and air migration, resist heat gain
and maintain acceptable appearance.”

!

Engineering Design Data, Section 2.13.2 – “Installation
specifications apply generally to holding freezers and holding
coolers unless otherwise note[ed].”

20. On or about March 6, 2014, Czar issued a proposal to Thomas for
engineering services in connection with the Wall System. (D.I. 243-3, Stip. Ex. 130.)
21. The shop drawings prepared by Ashford on Thomas’s behalf did not include
the “V” grooves, or channels, (“V-Channels”) referenced in PFF’s Product Data and
R+B’s construction documents.
22. On September 8, 2014, there was an email discussion regarding the
absence of V-Channels, in the shop drawings submitted by Thomas. (D.I. 243-1, Stip.
Ex. 44; D.I. 243-3, Stip. Ex. 129.)
23. The V-Channels were not field cut in panels when Thomas installed them.
11

24. Installation of the Wall System on the building commenced in September
2014.
25. The first batch of panels was delivered to the site on September 30, 2014.
(D.I. 243-3, Stip. Ex. 124 at 2.)
PARTIES’ MOTIONS
Because of its impact on the parties’ motions for summary judgment, the court
first discusses Whiting-Turner and Precision Foam’s Motion to Strike, and then
proceeds to the parties’ motions for summary judgment.
Whiting-Turner and Precision Foam’s Joint Motion to Strike Expert Report of
Thornton Tomasetti, Inc. and Mark E. Dannettel
Whiting-Turner and Precision Foam move pursuant to Federal Rule of Evidence
702 (“F.R.E. 702") to strike the FEDERAL RULE OF CIVIL PROCEDURE 26(b)(2) Expert
Report of Thornton Tomasetti, Inc. and Mark E. Dannettel (“Thornton Tomasetti Report”
or “Report”) as it pertains to claims asserted by DSU against W-T and PFF (“Motion to
Strike”).32 Alternatively, they move in limine requesting the Thornton Tomasetti Report,
32

D.I. 201. Briefing on the motion is found at D.I. 202 (W-T and PFF Opening
Brief); D.I. 231 (DSU Consolidated Answering Brief); and D.I. 237 (W-T and PFF Reply
Brief). On January 24, 2020, TCI filed a Notice of Adoption of the Motion to Strike and
the movants’ opening brief in support thereof. D.I. 251 (“Notice of Adoption”). On
January 31, 2020, DSU filed a Response to the Notice of Adoption urging the court to
reject TCI’s filing as untimely under the Scheduling Order or, in the alternative, deny it
for the substantive reasons set forth in DSU’s original opposition. D.I. 252. Separately,
DSU emphasizes the nature of the motion in its response: “[t]hough titled a ‘Motion to
Strike,’ it is indisputably a Daubert motion as it seeks to excluded expert evidence
based on F.R.E. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and
its progeny.” Id. at 1 n.1. The court does not disagree with DSU’s characterization of
the motion, however, consistent with the parties’ references in briefing, the court uses
“Motion to Strike” when discussing this motion. With regard to TCI’s filing, it is rejected
as untimely. It is also superfluous as it does nothing more than adopt the movants’
positions without adding any substantive argument, and the court’s determination that
12

and any testimony associated therewith by Dannettel or any other witness identified as
providing expert testimony on behalf of DSU, be excluded from the evidence in support
of DSU’s claims against them.33
I.

BACKGROUND–W-T and PFF Motion to Strike
DSU’s OSCAR Facility is a three story structure with a triangular floor plan.34

The OSCAR Facility’s three sides generally face north, east, and west and are enclosed
primarily by 50 ± foot tall insulated metal panels, commonly referred to as structural
insulated panels (“SIPs” or “Panels”). 35 As installed on the Project, the Panels are
composite, comprised of a 6 inch rigid foam core that is bonded between two metal
facings.36 As specified by the Project architect of record, R+B, the Panels’ exterior
facings are thin (1/64th inches), 26 gauge polished stainless steel sheets. 37 The
Panels’ exterior facings make up part of the OSCAR Facility’s façade.38 The Panels’
interior facings are thin (1/64th inches) 26 gauge corrugated and painted galvanized
steel.39 As designed and specified by R+B, the Panels attached to the OSCAR Facility
by “gravity load connections” that “hang” the Panels from the OSCAR Facility’s third
floor.40 The Panels are suspended from the OSCAR at the point of the gravity load

the Report does not meet the requirements of F.R.E. 702 removes the Report’s
application to all defendants.
33
D.I. 201.
34
D.I. 195 ¶ 3.
35
D.I. 202-1, Ex. A, DSU 9575-77 (photographs of OSCAR Facility); D.I. 195
¶¶ 1-5.
36
D.I. 195 ¶ 4.
37
D.I. 243-1, Stip. Ex. 3 § 2.3.B.
38
D.I. 243-12 (George Dep.) at 43:7-15.
39
D.I. 243-1, Stip. Ex. 3 § 2.3.A.
40
D.I. 195 ¶¶ 8-9; D.I. 243-1, Stip. Ex. 7.
13

connection.41 Two “lateral connections,” one above, and one below, the gravity
connections, connect the Panels to the building while allowing for some horizontal
movement to control wind forces that affect the Panels. 42 As specified by R+B, the
Panels served as both the exterior façade and as an insulated wall to which drywall was
attached to create the interior of the OSCAR Facility.43 R+B used Permatherm as its
basis of design for the panels, and Specification 07435 listed both Permatherm and
PFF as acceptable panel manufacturers.44
DSU alleges design and construction defects relating to the construction of the
insulated panel façade of DSU’s OSCAR Facility.45 DSU contracted with W-T to serve
as the Construction Manager (“CM”) as Adviser for the Project.46 DSU contracted with
TCI to furnish and install the metal panels and provide design/engineering services for
the panel façade system, including all connections thereof.47 TCI, in turn, entered into a
purchase order (“PO”) with PFF to procure the panels. 48
As pertinent to the Motion to Strike, DSU contends the m etal panels failed by
horizontally deforming or “buckling” on the exterior skin.49 DSU sued W-T for breach of
contract, and PFF for breach of contract, negligence, and unjust enrichment.50 DSU

41

D.I. 243-12 (George Dep.) at 123:2-5.
D.I. 243-1, Stip. Ex. 7; D.I. 243-12 (George Dep.) at 123:10-19.
43
D.I. 243-12 (George Dep.) at 44:22-45:13.
44
D.I. 195 ¶ 10.
45
D.I. 202 at 1.
46
D.I. 195 ¶ 12.
47
D.I. 202 at 1 (citing (D.I. 195 ¶¶ 10, 14; D.I. 243-1, Stip. Exs. 3, 48; D.I. 243-3,
Stip. Exs. 139, 140)).
48
Id.
49
Id.
50
Id.
42

14

retained Thornton Tomasetti, Inc. and its principal, Mark E. Dannettel (“Dannettel”),
(collectively, “Thornton Tomasetti”) to issue the Report pursuant to F EDERAL RULE OF
CIVIL PROCEDURE 26(B)(2) with respect to, inter alia, the alleged responsibility of various
entities for the purported failures in the panels. 51 W-T and PFF maintain neither the
Report and/or Dannettel meet the requirements of FEDERAL RULE OF EVIDENCE 702 and,
therefore, the Motion to Strike must be granted.52
II.

GOVERNING LAW–W-T and PFF Motion to Strike
The admissibility of expert testimony is governed by FEDERAL RULE OF EVIDENCE

702, which provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.53
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court interpreted
Rule 702 to “confide[] to the judges some gatekeeping responsibility in deciding
questions of the admissibility of proffered expert testimony.”54 The Third Circuit stated
51

Id.; D.I. 243-3, Stip. Ex. 147 (Thornton Tomasetti Report). The Report was
authored by Dannettel and Christopher E. Pinto, P.E. Id.
52
D.I. 202 at 2.
53
FED. R. EVID. 702 (emphasis added).
54
509 U.S. 579, 600 (1993) (Rehnquist, J., concurring in part and dissenting in
part); see also Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (Daubert
15

that Rule 702 “embodies a trilogy of restrictions on expert testimony: qualification,
reliability and fit.”55 The question of whether an expert’s testimony is admissible based
on his qualifications, reliability, and fit is committed to the court’s discretion. 56 The party
proffering the expert bears the burden of demonstrating that the expert’s opinion is
reliable and fits the facts by a preponderance of the evidence.57
III.

DISCUSSION–W-T and PFF Motion to Strike
A.

Positions of the Parties–W-T and PFF Motion to Strike58
1.

W-T and PFF

The movants contend Dannettel is not qualified to serve as an expert as relates
to Whiting-Turner or Precision Foam, and, even if found to be qualified, he fails to meet
any of the required elements because: (1) Dannettel is not qualified to speak on the
contractual obligations or responsibilities of Whiting-Turner or Precision Foam; (2) his
opinion is not based on sufficient facts or data; and (3) his opinion is inherently
unreliable, and, therefore, inadmissible.59
2.

DSU

imposes upon the court a duty to act as a “gatekeeper” where the court must “ensure
that ‘any and all expert testimony or evidence is not only relevant, but also reliable.’”)
(quoting Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)); Sonos,
Inc. v. D & M Holdings Inc., 297 F. Supp. 3d 501, 507 (D. Del. 2017) (W hen an expert’s
testimony is challenged, “the district court has a ‘basic gatekeeping obligation’ to ensure
that the expert’s testimony ‘is not only relevant, but reliable.’”) (quoting Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 147 (1999)).
55
Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).
56
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir. 1994).
57
Oddi v. Ford Motor Co., 234 F.3d 136, 144 (3d Cir. 2000).
58
The parties’ positions for each motion are taken from the argument summary,
or argument sections of their respective opening briefs.
59
D.I. 202 at 2, 16-20.
16

DSU argues the Motion to Strike should be denied beca use: (1) Dannettel’s
extensive experience as a façade consultant and façade contractor qualify him to testify
on defendants’ obligations and responsibilities; (2) Dannettel’s testimony is based on
sufficient facts and data; and (3) Dannettel’s testimony is the product of reliable
principles and methods that were properly applied to the facts of this case.60
B.

Analysis–W-T and PFF Motion to Strike
1.

Whether Dannettel is Qualified to Opine on the
Contractual Obligations or Responsibilities of WhitingTurner or Precision Foam

“Qualification refers to the requirement that the witness possess specialized
expertise.”61 The Third Circuit has “‘interpreted [the qualification] requirement liberally,’
holding that ‘a broad range of knowledge, skills, and training qualify an expert as
such,’”62 but “ha[s] not pursued a policy of qualifying any proffered witness as an
expert.”63 “The basis of this specialized knowledge ‘can be practical experience as well
as academic training and credentials.’”64 The Third Circuit has “eschewed imposing
overly rigorous requirements of expertise and ha[s] been satisfied with more

60

D.I. 231 at 24-34.
Estate of Schneider, 320 F.3d at 404.
62
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003)
(quoting Paoli, 35 F.3d at 741).
63
Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (quoting American Tech.
Resources v. United States, 893 F.2d 651, 656 (3d Cir. 1990)).
64
Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (quoting Hammond v. Int’l
Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982)); see also id. (“[I]n considering the
qualification of witnesses as experts, we stress that ordinarily an otherwise qualified
witness is not disqualified merely because of a lack of academic training.”) (citing
Hammond, 691 F.2d at 653 (determining that a witness could testify as an expert
regarding a rollover protective structure on a tractor even though he did not have a
formal degree in engineering or physics, but did have experience in the field)).
61

17

generalized qualifications.”65 “[I]t is not necessary that the expert have expertise in the
precise technology” at issue,66 and “[a]n expert should not be excluded ‘simply because
the trial court does not deem the proposed expert to be the best qualified or because
the proposed expert does not have the specialization that the court considers most
appropriate.’”67
DSU contends Dannettel’s education and general experience as a façade
consultant demonstrate he is qualified to offer expert testimony in this case.68 The
movants counter that Dannettel does not have the required specialized knowledge as it
relates to W-T and PFF because he has never served as, or worked for, a construction
manager (“CM”), has no prior experience with similar SIPs, lacks any education or
training related to the duties of a CM or SIP panel manufacturer, and does not know the
difference between a CM and a general contractor.69 The movants also argue that
because Dannettel is not a licensed architect, is not registered as a professional
engineer, and is not an engineer of any kind, he is precluded from testifying as an
expert in Delaware.70
Addressing the last argument first, the movants rely on two unreported cases
from the Superior Court of Delaware that discuss the qualifications required for an
65

Paoli, 35 F.3d at 741 (citations omitted).
Sonos, 297 F. Supp. 3d at 510 (citing Paoli, 35 F.3d at 741); see, e.g., Knight
v. Otis Elevator Co., 596 F.2d 84, 87-88 (3d Cir. 1979) (holding that an expert could
testify that unguarded elevator buttons constituted a design defect despite expert's lack
of specific background in design and manufacture of elevators).
67
Sonos, 297 F. Supp. 3d at 508 (quoting Pineda v. Ford Motor Co., 520 F.3d
237, 244 (3d Cir. 2008)).
68
D.I. 231 at 26.
69
D.I. 202 at 16.
70
Id. at 16-17.
66

18

expert to testify in Delaware state court.71 Those cases considered whether a proffered
expert who was not licensed in the field at issue was precluded from offering expert
testimony in view of certain Delaware state statutory licensing/registration
requirements.72 While acknowledging those requirements, the Talley court also stated
“[t]he Act was never intended to override the Court's gatekeeping function under D.R.E.
702 or affect the Court's analysis under Daubert.”73 This court has also recently noted
that, in contrast to certain parties recognized by Delaware as subject to professional
negligence causes of action, e.g., architects and engineers, that require a license to
practice, “[e]xpert witnesses . . . are not required to hold a license to offer opinions or
testimony.”74 Given the Third Circuit’s clear statement that specialized knowledge can
be found without “academic training and credentials,”75 and this court’s recent
statement in Verition, the court rejects the argument Dannettel is precluded from
testifying because he is not a licensed architect or engineer.
DSU is ultimately unable, however, to demonstrate Dannettel has the required
specialized knowledge to offer his proffered testimony. DSU suggests the movants
“overlook the fact that [the Report] was co-authored by Christopher E. Pinto, P.E., who
71

Id. (citing Talley v. Tri-State Waste Solutions, Inc., C.A. No. 05C-08-311-PLA,
2007 WL 1816356 (Del. Super. June 25, 2007); Burkett-Woods v. Haines, C.A. No.
02C-10-263-CLS, 2006 WL 1579770 (Del. Super. May 2, 2006)).
72
See Talley, 2007 WL 1816356, at *3; Burkett-Woods, 2006 WL 1579770, at
*3.
73
Talley, 2007 WL 1816356, at *3. Talley cited the same section of the
Delaware code the movants cite. See D.I. 202 at 17 n.16; see also Burkett-Woods,
2006 WL 1579770, at *1 (“D.R.E. 702 is identical to its f ederal counterpart, F.R.E.
702.”).
74
Verition Partners Master Fund, Ltd. v. Cornell, C.A. No. 19-377-CFC, 2020 WL
2917258, at *4 (D. Del. June 3, 2020) (citations om itted).
75
Hammond, 691 F.2d at 653.
19

is a licenced engineer in Delaware (among other states), supported by a team of three
other Thornton Tomasetti engineers.”76 Dannettel is the only DSU testifying expert
witness.77 His qualifications are not implicated by the qualifications of others involved
with the Report. The suggestion that Dannettel can somehow rely upon the credentials
of others associated with the Report to establish his qualification is provided without
support and rejected. 78
DSU also argues Dannettel’s specialized knowledge is based on his education
and extensive experience as a façade consultant. 79 The court first notes Dannettel’s
degrees are in architecture rather than engineering. DSU’ argument that Dannettel’s
experience as a façade consultant and façade contractor qualifies him to testify on
defendants’ obligations and responsibilities relies almost exclusively on Dannettel’s
September 20, 2019 affidavit which comprises 253 paragraphs spanning forty-six
pages, and was submitted contemporaneously with DSU’s consolidated answering
brief.80 The movants object to DSU’s reliance on that affidavit because it was not
included in the Thornton Tomasetti Report as mandated by FED. R. CIV. P. 26(a)(2), or
76

D.I. 231 at 26.
See D.I. 202 at 3 (citing D.I. 202-1, Ex. D (Kelly e-mail dated 04/02/2019 and
D. Rea e-mail dated 04/04/2019)).
78
See, e.g., Talley, 2007 WL 1816356, at *3 (“The licensing status of [two other]
. . . engineers employed by the same firm as [the proffered expert], has no impact on
the Court’s analysis of [the proffered expert’s] qualifications.”).
79
Dannettel received a Bachelor of Science Degree in Architecture from the
University of Maryland and a Master of Science Degree in Architecture from Arizona
State University, is a principal of the international engineering firm Thornton Tomasetti,
is a member of the American Society of Civil Engineering and the American Institute of
Architects (“AIA”), author of numerous technical articles in the industry, and has taught
and lectured across the country and abroad. See D.I. 243-3, Stip. Ex. 147 (Dannettel’s
curriculum vitae attached to Report).
80
See D.I. 231-1, App’x A (“Dannettel Affidavit”).
77

20

disclosed in Dannettel’s two days of deposition testimony, despite repeated questioning
about his relevant qualifications and experiences.81
Rule 26(a)(2) requires a testifying expert’s report contain, inter alia, “the
witness’s qualifications . . . .”82 The scheduling order provided for expert discovery to
close August 23, 2019. 83 The Thornton Tomasetti Report is dated March 1, 2019, 84 and
Dannettel provided deposition testimony on April 15 and May 31, 2019.85 Unfortunately,
other than stating their objection to DSU’s reliance on the affidavit, the movants do not
explicitly ask the court to disregard the affidavit or provide case citation upon which the
court could rely to do so. Had they done so, the court would have seriously considered
the request because Dannettel’s qualifications go to the heart of the Rule 702 analysis.
For instance, in Doe v. Luzerne County, the court declined to strike expert
affidavits for failure to comply with Rule 26(a)(2)(B)(iii) & (vi) (inclusion of exhibits used
to support opinions, and statement of compensation, respectively) with the court finding
failure to fully comply with the rule did not prejudice the plaintiff “because the summary
judgment motion can be decided without this information,” and exclusion based on
“remedial oversights would be an extreme and unwarranted sanction,” 86 Here, the
failure to include the information in Dannettel’s Report now offered via his affidavit goes
to the heart of the issue of his qualifications to testify as an expert. Nevertheless, the

81

D.I. 237 at 1-2 (citing D.I. 243-9 (Dannettel Dep. Vol. I) at 64:4-66:9;
129:22-130:1; 135:7-21; D.I. 243-10 (Dannettel Dep. Vol. II) at 14:10-18:10).
82
FED. R. CIV. P. 26(a)(2)(B)(iv).
83
D.I. 146 ¶ 4; D.I. 169; D.I. 177.
84
D.I. 243-3, Stip. Ex. 147 at 1.
85
D.I. 243-9; D.I. 243-10 (Dannettel Dep. Vols. I and II).
86
C.A. No. 3:08-cv-1155, 2010 WL 2245578, at *4 (M.D. Pa. June 1, 2010).
21

court determines Dannettel’s affidavit does not demonstrate he is qualified to offer his
proffered testimony.
DSU spends several pages of briefing reciting Dannettel’s “extensive experience
working at architecture firms, an international engineering firm and a façade
contractor.”87 Nowhere, however does DSU tie Dannettel’s impressive resume to the
specialized knowledge required to offer his proffered testimony. The movants present
unrebutted evidence suggesting he does not.
Dannettel acknowledges he has never served as, worked for, or been
responsible for overseeing, a CM as Advisor, i.e., the position W-T held on the
Project.88 He testified to not knowing if he ever worked on a project where there was a
CM as Advisor, “if there is a construction manager on the project, the distinction of
whether that’s an adviser or a standard construction manager, would not be made to
someone like me so I wouldn’t know.”89 Dannettel also stated he did not know the
difference between the positions of a general contractor, or CM at Risk, and a CM as
Adviser.90
DSU does not specifically address Dannettel’s knowledge of the roles played by
the various entity-positions. His apparent lack knowledge indicates the absence of his
specialized knowledge.
87

See D.I. 231 at 26-31.
See D.I. 243-9 (Dannettel Dep. Vol. I) at 64:25-65:25.
89
Id. at 66:1-9.
90
Id. at 137:7-12. According to the movants, a CM at Risk or General Contractor
enters into a contract with an owner to deliver a final and finished product, contracts
directly all trades necessary to complete the final product, and is, therefore, responsible
for the performance of the trade contractors that actually perform the work. D.I. 202 at
13 n.13 (citing D.I. 202-1, Exs. E, F; id., Ex. G (George Aff.) ¶¶ 4-6).
88

22

The movants also contend that, prior to the OSCAR Facility, Dannettel’s lack of
work on a project that specified, used, or contained a SIP panel system further
demonstrates he is unqualified to testify here.91 The court agrees. Dannettel testified
he “never used these panels before. I‘ve never been involved in a project using these
panels before.”92 He also has no special training in the use or design of SIP panels or
systems,93 no experience with SIP panel manufacturing, and has never worked for a
panel manufacturer like PFF.94
DSU’s surprising response is not to counter, but rather emphasize, Dannettel’s
testimony that he lacks experience with the panels at issue.
So I haven’t done SIP panels and SIP panels are not normally used for
the type of commercial construction that I normally engage with, which
would include a building like this, but my suspicion is that because SIP
panels are used for kind of a lower grade of construction like warehouses,
that would never have a façade consultant involved with a cheap job like
that, like for a warehouse, that would really just be the architect and the
engineer. So I’m suspecting that the common practice is that the design
team just fully engineers and details that based on manufacturer’s
information, and the installer is really just an installer, but I don’t know that
for a fact if that is standard practice for the SIPs.95
Based on Dannettel’s lack of experience with SIPs, and suppositions as to their
use, DSU remarkably proclaims “Dannettel is not experienced in these particular panels
because they are not used in high-end architectural applications, but in warehouses

91

D.I. 202 at 14 (citing D.I. 243-9 (Dannettel Dep. Vol. I) at 64:4–11; D.I. 243-10
(Dannettel Dep. Vol. II) at 14:10–16, 15:10–13).
92
D.I. 243-9 (Dannettel Dep. Vol. I) at 129:22-130:1.
93
D.I. 243-10 (Dannettel Dep. Vol. II) at 14:17-23.
94
Id. at 15:24-16:2, 16:23-25.
95
D.I. 231 at 32-33 (emphasis added).
23

and industrial freezer units.”96
Thus, the court determines Dannettel is not qualified to opine as to defendants’
liability.
This determination is sufficient to grant the Motion to Strike. The court will,
however, discuss DSU’s failure to meet its burden of demonstrating the additional Rule
702 restrictions on expert testimony.
2.

Whether Dannettel’s Opinion is Based on Sufficient Facts or
Data

The movants assert Dannettel’s opinion is not based on suf ficient facts or data.
They do not take issue with the Report’s identification that the cause of the panel-failure
resulted from the panels being restrained in a way that failed to allow them to expand
under the heat of the sun, and that the connections are the cause of that restraint.97
Instead, they argue Dannettel’s assignment of responsibility for that failure lacks a basis
in science or his experience.98
The movants state that in assigning responsibility to PFF for the alleged panel
failures, Dannettel did not rely on the contracts, and he did not perf orm any forensic or
destructive testing, or product analysis, on the PFF panels. 99 They contend Dannettel
was unable to identify any product defect that caused the alleged panel failures.100 The
96

Id. at 33 (emphasis added).
D.I. 202 at 17.
98
Id.
99
Id. (citing D.I. 243-10 (Dannettel Dep. Vol. II) at 28:12-23; 56:7-10). T he
movants suggest, and DSU does not argue otherwise, that the contracts/purchase
orders are the source of any responsibilities they had to DSU and TCI. D.I. 237 at 8
n.8.
100
D.I. 202 at 17.
97

24

movants conclude that because Dannettel did not conduct any product analysis,
combined with his purported lack of education, training, or experience in working with a
SIP system or SIP manufacturing, that his opinions with respect to PFF are mere
conjecture.101
DSU provides very little in support of this requirement. In less than one page of
argument, it merely states the Report and Dannettel’s testimony demonstrates,
“Thornton Tomasetti engaged in a thorough cause and origin analysis of the failure of
the Precision Foam panels.”102 The extent of that argument is as follows:
At Thornton Tomasetti’s direction, Intertek conducted a thermal study for
a period of 14 days in July 2018, using thermocouple sensors installed on
the stainless steel facings of the panels throughout the exterior and
interior of the building. Thornton Tomasetti then conducted an extensive
engineering analysis of the Precision Foam composite panels to
determine the cause and origin of the failure. This analysis included
extensive computer modeling to assess various stresses the panels are
subject to including solar exposure, thermal variations, and wind loads.
Thornton Tomasetti also engaged in a thorough review of the design,
engineering, and construction of the OSCAR Facility contained in
documents produced by all parties. Based on the results of extensive
independent engineering analysis, Thornton Tomasetti determined the
panels were failing due to the effect of thermal loads. There was no need
to conduct material testing as Thornton Tomasetti determined the cause
and origin of the panel failure.103
As the movants note, DSU “does not provide a record citation for these
enumerated studies and analysis[.]”104 The court’s review of the Report reveals Intertek
conducted a fourteen-day thermal study in July 2018, using thermocouple sensors

101

Id. at 17-18.
D.I. 231 at 33 (emphasis added).
103
Id. at 33-34.
104
D.I. 237 at 5 n.6.
102

25

installed on the stainless steel facings of the panels throughout the exterior and interior
of the building.105 The only “studies” Thornton Tomasetti performed of the PFF panels
to determine the cause and origin of the failure, were: Element Analysis to determine
the stresses in the Panels’ stainless steel as attached to the OSCAR Building caused
by differential temperatures; and three analyses to determine the stresses in the
Panels’ stainless steel facings due to differential temperature, but including
relief-notches (V-Channels).106 As the movants indicate, however, Dannettel’s
testimony, shows that neither he nor Thornton Tomasetti: (1) tested how or to what
extent making the V-Channels might lead to structural failures in the panels; 107 (2)
analyzed how the V-Channels could challenge the panels’ abilities to support their own
weight;108 or (3) investigated either the beneficial or detrimental effects of making the VChannels in the panels at places other than the second and third f loor connections. 109
The movants also indicate neither DSU nor Thornton Tomasetti produced the electronic
data and models that were requested to be produced in the Finite Element Analysis.110
As the movants note, “there is not a lot of dispute” that the panels were failing
due to the effect of thermal loads111 and the court finds DSU’s mere statement “[t]here
was no need to conduct material testing as Thornton Tomasetti determined the cause

105

See D.I. 243-3, Stip. Ex. 147 at 13-14 § 3.1.5, 18 § 3.2.1; id., App. C
(Interteck Thermal Observation Report).
106
Id. at 19-21 § 3.2.4 (Engineering Analysis of Composite Panel).
107
D.I. 243-9 (Dep. Tr. Dannettel, Vol. I) at 86:14-88:7.
108
Id. at 88:8-91:5.
109
Id. at 86:14-88:7.
110
D.I. 237 at 5-6 n.6.
111
Id.
26

and origin of the cause and origin of the panel failure”112 unpersuasive. The court
agrees with the movants that the Report is not based on sufficient facts or data to
support Dannettel’s opinion “assigning responsibility to every company involved in any
way with the panels.” 113
The movants also contend Dannettel’s conclusion that W -T contributed to the
panel failures is deficient as he was unable to cite any supporting facts or data.114 W-T
maintains its obligations to DSU are defined by its contract, but Dannettel testified that
though he read the contracts at issue, he did not rely upon them in assigning
responsibility, thereby creating responsibilities having contractual bases. 115
DSU acknowledges the movants’ argument that Dannettel did not rely on any
parties’ contract in assigning liability, but states that lack of reliance does not show his
Report and testimony were not based on sufficient facts and data because Thornton
Tomasetti engaged in the tests and analysis discussed above.116
The court agrees with the movants that Dannettel’s opinion that defendants’
failures may have contributed to the Panel’s buckling never specifically states how
112

D.I. 231 at 34. DSU also defends the failure to conduct any forensic or
destructive testing of PFF’s panel’s based on the movants failure to reference the
expert opinion of any other parties’ expert supporting the argument that such testing is
necessary and/or specifically pointing to what testing or opinion of PFF’s expert did, or
did not, conduct or offer, as well as W-T’s adopting the opinion of others in leu of
designating its own expert. Id. at 36-37. The court does not understand the actions or
opinions of other experts in this case as having a determinative impact on the court’s
analysis as to the sufficiency of Dannettel’s Report under a Rule 702. DSU has the
burden of establishing its Report’s compliance with Rule 702.
113
D.I. 202 at 17; D.I. 237 at 6 (emphasis added).
114
D.I. 202 at 17.
115
Id. (citing D.I. 243-9 (Dannettel Dep. Vol. I) at 41:23-42:6; 44:5-16).
116
D.I. 231 at 33 (citing D.I. 202 at 17-18).
27

those failures fell below the standard of care applicable to any defendant, including W-T
and PFF, or what those standards of care are.117 Despite DSU’s contention that
Dannettel “did opine that [all] Defendants breached various standards of care and
duties governing their performance,”118 and citation to several pages of testimony by
Dannettel in support, 119 the court rejects the sufficiency of that testimony.
DSU acknowledges the Report does not use the words “standard of care” with
regard to any defendant’s purported failures, but relies on this court’s opinion in
McCuster v. Surgical Monitoring Associates, Inc. to argue the failure to use those
“magic words” is not necessarily fatal to an expert’s opinion.120 That opinion is not
persuasive based on the evidence presented here. The court disagrees with DSU’s
argument that McCuster is analogous to this case. 121 In rejecting the defendant’s
argument that its “conduct only ‘possibly’ could have caused the injury at issue,” the
court stated that, although the expert did not use the “magic words” “standard of care,”
she specifically testified the doctor’s error was “the only possible explanation” for the
plaintiff-patient’s injuries,122 and that the doctor made “technical errors,” which the
expert equated to a breach of the standard of care.123 As movants stress, Dannettel’s
Report and deposition testimony, and affidavit, contain no similar assertion that
117

D.I. 202 at 9 (emphasis added).
D.I. 231 at 15-16 (citing D.I. 243-3, Stip. Ex. 147 at 23-27 §§ 4.0-4.3)
(emphasis added).
119
Id. at 18-23 (specifically referencing PFF, W-T, and R+B).
120
See id. at 16-18 (citing McCuster v. Surgical Monitoring Assocs., Inc., C.A.
No. 01-891-KAJ, 2005 WL 348307 (D. Del. Feb. 7, 2005)).
121
Id. at 16 (citing McCuster, 2005 WL 348307, at *4).
122
McCuster, 2005 WL 348307, at *5 (emphasis added).
123
Id. at *5 and n.11.
118

28

defendants’ alleged “failures” or “responsibilities” were the “only explanation”; they were
merely possible proximate causes of the Panel defects.124
The court concludes, therefore, DSU fails to meet its burden to show the Report
and Dannettel’s opinion are based on suf ficient facts or data.
3.

Whether Dannettel’s Opinion is Product of a Reliable
Methodology.

The movants assert Dannettel’s opinion as to their liability is unreliable and fails
to meet the Daubert standard because, in arriving at his opinions, Dannettel and the
Report do not state that either W -T or PFF’s acts or omissions conclusively, or within
any reasonable degree of certainty, actually caused the alleged defects.125 They also
reiterate that neither Dannettel’s Report nor testimony assign any responsibility to W-T
or PFF for failing to meet contractual obligations, or articulate what the standard is for
the CM Advisers or a panel manufacturer’s alleged duty of care, or that W-T or PFF did
not meet that duty.126
An expert’s opinion is typically reliable if it is ‘“based on the ‘methods and
procedures of science’ rather than on ‘subjective belief or unsupported speculation’; the
expert must have ‘good grounds for his or her belief.’”127 The purpose of this reliability
requirement “is to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level

124

D.I. 237 at 7 and n.7.
D.I. 202 at 19.
126
Id.
127
Izumi Prods. Co. v. Koninklijke Philips Elecs. NV, 315 F. Supp. 2d 589, 600
(D. Del. 2004).
125

29

of intellectual rigor that characterizes the practice of an expert in the field.”128 As a
gatekeeper, the “district court must examine the expert's conclusions in order to
determine whether they could reliably follow from the facts known to the expert and the
methodology used.”129 “[N]othing in either Daubert or the [F.R.E.] requires a district
court to admit opinion evidence that is connected to existing data only by the ipse dixit
. . . of the expert. A court may conclude that there is simply too great an analytical gap
between the data and the opinion prof fered.”130
The Third Circuit considers the following non-exhaustive factors when evaluating
the reliability of a particular methodology:
(1) whether a method consists of a testable hypothesis; (2) whether the
method has been subject to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is generally accepted; (6)
the relationship of the technique to methods which have been established
to be reliable; (7) the qualifications of the expert witness testifying based
on the methodology; and (8) the non-judicial uses to which the method
has been put. 131
“When the methodology is sound, and the evidence relied upon sufficiently related to
the case at hand, disputes about the deg ree of relevance or accuracy (above this
minimum threshold) may go to the testimony’s weight, but not its admissibility.”132
Indeed, “in most cases, objections to the inadequacies of a study are more

128

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999).
130
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
131
Hologic, Inc. v. Minerva Surgical, Inc., 325 F. Supp. 3d 507, 520 (D. Del.
2018) (citation omitted).
132
Id. at 521 (quoting i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed.
Cir. 2010), aff’d, 564 U.S. 91 (2011)).
129

30

appropriately considered an objection going to the weight of the evidence rather than its
admissibility.”133
DSU cited the above block-quoted language from Hologic listing factors
considered when a court evaluates the reliability of a particular methodology,134 but did
not discuss them other than to state: “Dannettel applied standard m ethods to conduct
an extensive engineering analysis of the Precision Foam composite panels to
determine the cause and origin of their failure. Additionally, Mr. Dannettel thoroughly
reviewed all architectural, structural, and design drawings, Precision Foam’s Product
Data, email correspondences throughout the project and technical standards.” 135 DSU
then quotes sections of the Report listing conclusions with respect to W-T and PFF.136
Having discussed the insufficiency of the Dannettel’s Report and testimony to meet the
facts and data requirement, including the standard of care applicable to the movants’
respective contractual obligations and proximate cause of their actions with respect to
the panel failures, the court likewise determines Dannettel’s Report and testimony are
not the product of a reliable methodology.
The party proffering the expert bears the burden of demonstrating that the
expert’s opinion is reliable and fits the facts by a preponderance of the evidence.137
The court finds DSU fails to meet that burden with respect to each of the Rule 702
requirements.
133

Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1188 (9th Cir. 2002).
See D.I. 231 at 34.
135
Id. at 35.
136
Id. at 35-36.
137
Oddi v. Ford Motor Co., 234 F.3d 136, 144 (3d Cir. 2000).
134

31

IV.

CONCLUSION–W-T and PFF Motion to Strike
For the reasons discussed above, The Whiting-Turner Contracting Company and

Precision Foam Fabricators, Inc.’s Joint Motion to Strike Expert Report of Thornton
Tomasetti, Inc. and Mark E. Dannettel (D.I. 201) is GRANTED.
Parties’ Motions for Summary Judgment
Because of the overlapping nature of the issues and arguments between and
among the parties’ motions for summary judgment, the court decides the motions in
separate sections, grouping motions that lend themselves to consolidated analysis to
the extent possible. The court begins with a section discussing DSU, W-T, and R+B’s
cross-motions for summary judgment on DSU’s breach of contract against those two
defendants. Next, the court addresses the summary judgment motions of Czar, TCI,
and R+B. The final section resolves PFF’s motion for summary judgment on claims
alleged against it by DSU, followed by PFF and TCI’s cross-motions on TCI’s breach of
contract claim against PFF, and on the discrete issue of alleged damages relating to
the first set of panels PFF produced and delivered. That section concludes with the
court’s determination of PFF’s motion for summary judgment on TCI’s remaining claims
against PFF. As will become apparent, despite attempting to address common issues
in each section of the opinion, there are instances of overlap within, and among, the
sections.
Governing Law–Parties’ Motions for Summary Judgment
A grant of summary judgment pursuant to F ED. R. CIV. P. 56 is appropriate if
materials on the record, such a deposition, docum ents, electronically stored

32

information, admissions, interrogatory answers, affidavits and other like evidence show
that there is no genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law.138 The movant bears the burden of establishing the lack of
a genuinely disputed material fact by demonstrating “that there is an absence of
evidence to support the nonmoving party’s case.”139 “Facts that could alter the outcome
are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person
could conclude that the position of the person with the burden of proof on the disputed
issue is correct.”140 “Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial.”141
This standard does not change because there are cross-motions for summary
judgment.142 Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily justified or
that the losing party waives judicial consideration and determination whether
genuine issues of material fact exist.143
“The filing of cross-motions for summary judgment does not require the court to
grant summary judgment for either party.”144

138

FED. R. CIV. P. 56 (a) and (c).
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
140
Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d
Cir.1995) (internal citations omitted).
141
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotations omitted).
142
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
143
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
144
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
139

33

Delaware State University’s Motion for Partial Summary Judgment
Whiting-Turner Contracting Co.’s Motion for Summary Judgment
Richärd+Bauer, LLC’s Motion for Summary Judgment
DSU moves for summary judgment in its favor on its breach of contract claim
against R+B and W-T.145 W-T moves for summary judgment in its favor on DSU’s
breach of contract claim against W-T, and/or to limit DSU’s damages.146 R+B moves for
summary judgment in its favor on DSU’s breach of contract claim against R+B.147
I.

BACKGROUND–DSU, W-T, and R+B Cross-Motions for Summary Judgment
on DSU’s Count I (Breach of Contract)
DSU’s breach of contract claim against R+B and W-T alleges breaches of

various provisions of defendants’ respective contracts with DSU related to the Project.
As described above, DSU contracted with R+B to serve as the Architect for the Project,
and with W-T to serve as the Construction Manager (“CM”) as Adviser.148 Each
contract required, inter alia, that W-T and R+B report errors, omissions, defects or
deficiencies in the work to DSU as the Owner.149 DSU alleges both defendants
145

D.I. 211 (Delaware State University Motion for Partial Summary Judgment).
Briefing on the motion is found at D.I. 213 (DSU Opening Brief); D.I. 226 (R+B
Answering Brief); D.I. 229 (W-T Answering Brief); and, D.I. 236 (DSU Consolidated
Reply Brief).
146
D.I. 208 (Whiting-Turner Contracting Co. Motion for Summary Judgment).
Briefing on the motion is found at D.I. 210 (W-T Opening Brief); D.I. 231 (DSU
Consolidated Answering Brief); and D.I. 239 (W-T Reply Brief).
147
D.I. 203 (Richärd+Bauer, LLC Motion for Summary Judgment). Briefing on
the motion is found at D.I. 204 (R+B Opening Brief); D.I. 231 (DSU Consolidated
Answering Brief); and, D.I. 233 (R+B Reply Brief). R+B’s motion also seeks summary
judgment in its favor and against all other defendants on all cross-claims against R+B.
The parties’ arguments on those claims are addressed elsewhere in this opinion.
148
D.I. 195, Stip. Fact 7; id. Stip. Fact 12.
149
D.I. 213 at 1.
34

breached their contracts by failing to meet their respective reporting requirements.150
W-T and R+B contend DSU’s breach of contract claim fails due to the lack of expert
testimony showing they breached their respective professional standards of care and/or
the evidence shows each fulfilled their contractual obligations, or that questions of fact
preclude summary judgment in favor of DSU.151
The specific contracts, documents, and provisions relevant to the parties’
motions follow.
On R+B January 20, 2012, DSU and R+B entered into a contract titled AIA®
Document B132™–2009, Standard Form of Agreement Between Owner and
Architect, Construction Manager as Advisor Edition) (“DSU-R+B Contract”).152
Pursuant to its contract, R+B prepared the Design Drawings for the Panel Wall System
designated as “100% Construction Documents.”153 R+B also prepared the specification
for the Panel Wall System, entitled “Specification 07435–INSULATED METAL WALL
PANELS” (Addendum 3, 11/14/2013) (“Specification 07435").154 Section 1.6.A of
Specification 07435 requires that the approved manufacturers possess certain
qualifications and experience.
Manufacturer’s Qualifications: Company specializing in manufacturing of
all required aspects of insulated metal panel production.
1.

No less than 10 years’ experience in the actual production of
specified products,

150

Id.
D.I. 210; D.I. 229; D.I. 204; D.I. 226.
152
D.I. 195, Stip. Fact 7; D.I. 243-1, Stip. Ex. 47 (R+B Contract).
153
D.I. 243-1, Stip. Ex. 7 (Design Drawings A11.1 through A11.3.).
154
Id., Stip. Ex. 3.
151

35

2.

Third party certification of Quality Control program and
materials utilized, in compliance with rigid factory guidelines,
which includes quarterly unannounced inspections by
independent testing laboratories, capable of providing
reports directly to code authority.

3.

Successfully completed not less than 100 comparable scale
projects using this system.

4.

Company specializing in manufacturing factory continuous
lamination of insulated metal panels with a minimum
documented experience of ten years.

5.

Company specializing in on site manufacturing rigid foam
insulation for the purpose of insulated metal panels with a
minimum documented experience of ten years.155

Provisions of the DSU-R+B Contract relevant to the parties’ motions include the
following:
R+B’s contract required it to oversee the services provided by other contractors,
and to coordinate with those contractors and DSU as the Owner.
Section 2.3 provides:
The Architect shall provide its services in conjunction with the services of
a Construction Manager as described in AlA Document C132 TM–2009,
Standard Form of Agreement Between Owner and Construction Manager.
The Architect shall not be responsible for actions taken by the
Construction Manager.156
Pursuant to § 3.1.2:
The Architect shall coordinate its services with those services provided by
the Owner, the Construction Manager and the Owner’s other consultants.
The Architect shall be entitled to rely on the accuracy and completeness
of services and information furnished by the Owner, the Construction
Manager, and the Owner’s other consultants. The Architect shall provide
155
156

Id., Stip. Ex. 3 at DSU_006179-80.
Id., Stip. Ex. 47 § 2.3.
36

prompt written notice to the Owner if the Architect becomes aware of any
error, omission or inconsistency in such services or information.157
DSU argues that although § 3.1.2 entitles R+B to rely on the accuracy of
information provided by others, it is required to report known errors, omissions, and
deficiencies in the work or submittals to DSU.158
R+B was required to provide “construction phase services,” including conducting
periodic site visits, and keeping DSU as Owner reasonably informed about the quality
and progress of the Work.
Section 3.6.2.1 provides:
The Architect shall visit the site at intervals appropriate to the stage of
construction . . . to become generally familiar with the progress and quality
of the portion of the Work completed, and to determine, in general, if the
Work observed is being performed in a manner indicating that the Work,
when fully completed, will be in accordance with the Contract
Documents. . . . On the basis of the site visits, the Architect shall keep the
Owner reasonably informed about the progress and quality of the portion
of the Work completed, and report to the Owner and the Construction
Manager (1) known deviations from the Contract Documents and from the
most recent construction schedule, and (2) defects and deficiencies
observed in the Work.159
DSU states R+B was required to review all submittals, including engineering
submittals made by other contractors under any so-called “performance
specifications.”160

157

Id., Stip. Ex. 47 § 3.1.2 (emphasis added); see also id., Stip. Ex. 47 § 3.1.1
(“The Architect shall manage the Architect’s services, consult with the Owner and the
Construction Manager, research applicable design criteria, attend Project meetings,
communicate with members of the Project team and report progress to the Owner.”).
158
D.I. 213 at 4.
159
D.I. 243-1, Stip. Ex. 47 § 3.6.2.1.
160
D.I. 213 at 4.
37

Section 3.6.4.2 specifies:
[The] Architect shall review and approve or take other appropriate action
upon the Contractor’s submittals such as Shop Drawings, Product Data
and Samples, but only for the limited purpose of checking for
conformance with information given and the design concept expressed in
the Contract Documents. Review of such submittals is not for the purpose
of determining the accuracy and completeness of other information such
as dimensions, quantities, and installation or performance of equipment or
systems, which are the Contractor’s responsibility.161
In addition to R+B’s obligation to report nonconforming or defective work to DSU,
R+B had authority to reject such work, and an obligation to notify DSU of any
rejection.162
Section 3.6.2.2 states:
The Architect has the authority to reject Work that does not conform to the
Contract Documents and shall notify the Construction Manager about the
rejection.163
Finally, R+B was required to perform its work according to the applicable
professional standard of care, and was responsible for its own breaches of that
standard.164
Section 2.2 provides:
The Architect shall perform its services consistent with the professional
skill and care ordinarily provided by architects practicing in the same or
similar locality under the same or similar circumstances.165

161

D.I. 243-1, Stip. Ex. 47 § 3.6.4.2.
D.I. 213 at 4 (citing D.I. 243-1, Stip. Ex. 47 § 3.6.2.2; D.I. 243-17 (Kennedy
Dep.) at 206-07).
163
D.I. 243-1, Stip. Ex. 47 § 3.6.2.2.
164
D.I. 213 at 5 (citing D.I. 243-1, Stip. Ex. 47 §§ 2.2, 3.6.1.2).
165
D.I. 243-1, Stip. Ex. 47 § 2.2.
162

38

Section 3.6.1.2 recites:
The Architect shall be responsible for the Architect's negligent acts or
omissions, but shall not have control over or charge of, and shall not be
responsible for, acts or omissions of the Construction Manager, or the
Contractor or of any other persons or entities performing portions of the
Work.166
On January 12, 2012, DSU and W-T entered into a contract titled AIA®
Document C132™ – 2009, Standard Form of Agreement Between Owner and
Construction Manager as Adviser; AIA® Document A232™ – 2009, General
Conditions of the Contract for Construction, Construction Manager as Adviser
Edition; and Section 00730–SUPPLEMENTARY GENERAL CONDITIONS TO THE
CONTRACT (“DSU-W-T Contract”).167 DSU asserts, as it does with respect to the
DSU-R+B Contract, that the DSU-W-T contract obligated it to oversee the work of other
contractors and to coordinate communications and services with those contractors and
DSU as the Owner.168 According to DSU, W-T required all project communications flow
through it as the Construction Manager.169
Provisions of the DSU-W-T Contract relevant to the parties’ motions include the
following:
Section 3.3.19 of W-T’s contract provides:
The Construction Manager shall promptly review all Shop Drawings,
166

Id., Stip. Ex. 47 § 3.6.1.2.
D.I. 195, Stip. Fact 12; D.I. 243-3, Stip. Ex. 94 (DSU-W-T contract); D.I. 2431, Stip. Ex. 48 (General Conditions); D.I. 243-3, Stip. Ex. 140 (Section 00730).
168
D.I. 213 at 5.
169
Id. (citing D.I. 243-12 (George Dep.) at 157-58; D.I. 243-17 (Kennedy Dep.) at
166-67 & 175-76; D.I. 243-11 (Thomas Dep.) at 243; D.I. 243-7 (Ashford Dep.) at 22;
D.I. 243-13 (Bartlett Dep.)).
167

39

Product Data, Samples and other submittals from the Multiple Prime
Contractors for compliance with the submittal requirements of the
Contract, coordinate submittals with information contained in related
documents, and transmit to the Architect those that the Construction
Manager recommends for approval.170
Pursuant to § 3.3.9:
The Construction Manager shall endeavor to obtain satisfactory
performance from each of the Multiple Prime Contractors. The
Construction Manager shall recommend courses of action to the Owner
when requirements of a Contract are not being fulfilled.171
As with R+B’s contract, § 3.3.14 of W-T’s contract required W-T to report defects
and deficiencies in any of the Work to DSU, and any rejection of nonconforming work.
The Construction Manager shall determine in general that the Work of
each Contractor is being performed in accordance with the requirements
of the Contract Documents and notify the Owner, Contractor and Architect
of defects and deficiencies in the Work. The Construction Manager shall
have the authority to reject Work that does not conform to the Contract
Documents and shall notify the Architect about the rejection. 172
Finally, W-T’s contract contains a parallel provisions to R+B’s contract requiring
W-T to perform its work according to the applicable professional standard of care, and
that W-T was responsible for its own breaches of that standard.
170

D.I. 243-3, Stip. Ex. 94 § 3.3.19; see also id., Stip. Ex. 94 § 3.2.5 (requiring
W-T to “review design documents during their development and advise the Owner and
Architect on proposed site use and improvements, selection of materials, and building
systems and equipment. The Construction Manager shall also provide
recommendations to the Owner and Architect on constructability . . . .”); id., Stip. Ex. 94
§ 3.2.8 (providing that “Construction Manager shall consult with the Owner and
Architect and make recommendations whenever the Construction Manager determines
that design details adversely affect constructability, cost or schedules.”); see also D.I.
243-12 (George Dep.) at 90-91, 252-53 (acknowledging that W-T’s review of submittals
was for the purpose of ensuring their conformance with the Contract Documents and
design).
171
D.I. 243-3, Stip. Ex. 94 § 3.3.9.
172
Id., Stip. Ex. 94 § 3.3.14 (emphasis added).
40

Section 2.2 provides:
The Construction Manager shall perform its services consistent with the
skill and care ordinarily provided by construction managers practicing in
the same or similar locality under the same or similar circumstances.173
Section 3.3.15 states:
The Construction Manager shall be responsible for the Construction
Manager's negligent acts or omissions, but shall not have control over or
charge of, and shall not be responsible for, acts or omissions of the
Contractor or Multiple Prime Contractors, Subcontractors, or their agents
or employees, or any other persons or any other persons or entities
performing portions of the Work.174
II.

GOVERNING LAW–DSU, W-T, and R+B Cross-Motions for Summary
Judgment on DSU’s Count I (Breach of Contract)
To prove a breach of contract claim, the plaintiff must show: (1) the existence of

a contract, (2) breach of the an obligation imposed by that contract, and (3) the
resultant damage to the plaintiff.175
Where professional negligence is the basis for a breach of contract claim, expert
testimony is generally required to establish the standard of care applicable to that
professional.176 In Seiler, the Delaware Supreme Court explained:
As a general rule the standard of care applicable to a professional can
only be established by way of expert testimony. See Christian, supra.
However,
“. . . if a layman is as competent as an expert to judge whether or
not a particular design created an unusual risk, evidence by experts
173

Id., Stip. Ex. 94 § 2.2.
Id., Stip. Ex. 94 § 3.3.15.
175
VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003)
(citations omitted).
176
See Seiler v. Levitz Furniture Co. of Eastern Region, Inc., 367 A.2d 999, 1008
(Del. 1976) (citation omitted).
174

41

is inadmissible because their proof that the defendant followed
standard practice would not necessarily show he was not
negligent.” Comment, Architect Tort Liability In Preparation of
Plans and Specifications, 55 Cal. L .Rev. 1361, 1364 (1967)
(citations omitted).
That exception is consistent with the law of this State. Larrimore v.
Homeopathic Hospital Ass’n of Del., Del. Supr., 4 Storey 449, 54 Del. 449,
181 A.2d 573 (1962). 177
III.

POSITIONS OF THE PARTIES –DSU, W-T, and R+B Cross-Motions for
Summary Judgment on DSU’s Count I (Breach of Contract)
DSU contends the undisputed facts demonstrate R+B and W-T materially

breached the clear and unambiguous terms of their respective contracts with DSU.178
DSU argues it is entitled to summary judgment in its favor because:
1. As the Architect of Record and Construction Manager, R+B and W-T, were
each obligated by their respective contracts to notify DSU of material errors,
omissions, inconsistencies and defects in any of the work.
2. As the Architect of Record, R+B was contractually obligated to prepare
Design Drawings and Specification 07435 for the Panel Wall System. In that
capacity, R+B incorrectly approved PFF as a panel manufacturer without
conducting any due diligence regarding whether the company or its product was
177

Id.; see also Brown v. Interbay Funding, LLC, 417 F. Supp. 2d 573, 579 (D.
Del. 2006) (“To state a claim for professional negligence, . . . , the standard of care
applicable to a professional can only be established through expert testimony.”)
(citations omitted). “Common law has created a local standard of care for professionals
in which the fact finder evaluates whether the actions of the professional conform to the
profession’s standards of skill, care and competence, as adhered to by professionals
who are in good standing in the community.” Norfleet v. Mid-Atlantic Realty Co., Inc.,
No. Civ.A 95C-11-008WLW, 2001 WL 695547, at *5 (Del. Super. Apr. 20, 2001) (citing
Seiler, 367 A.2d at 1007). “Delaware has recognized professional negligence causes of
action [against] lawyers, doctors, accountants, architects, engineers, insurance agents,
and massage therapists . . . .” Verition Partners Master Fund, Ltd. v. Cornell, C.A. No.
19-377-CFC, 2020 WL 2917258, at *4 (D. Del. June 3, 2020) (listing cases). DSU does
not appear to dispute the status of either W-T or R+B as “professionals” in the context
of their contractual obligations.
178
D.I. 213 at 2.
42

suitable for this application.
3. Both R+B and W-T were on express notice that the PFF product was
unsuitable for the specified application, but failed to either notify DSU of that fact
or select another product.
4. Both R+B and W-T repeatedly failed to notify DSU of material errors,
omissions, inconsistencies and defects in the design, engineering, fabrication,
and performance of the Panel Wall System. R+B and W-T’s failure to notify
DSU constitutes a material breach of their respective contracts.179
R+B’s opposition to DSU’s affirmative motion, and its own affirmative motion,
states R+B has a specialized “industry” contract with DSU which requires DSU to
provide an expert opinion on industry customs and standards to assist the court in
interpreting its contract, and determining whether R+B met the relevant standard of
care before any legal conclusions can be rendered. 180 Absent expert testimony, R+B
maintains DSU cannot establish its prima facie case and, therefore, DSU’s motion must
be denied, and R+B’s motion granted.181 R+B also argues there is no evidence of nonperformance to support DSU’s breach of contract claim.182 R+B contends, however,
that even if DSU could prove its contract required R+B to do something it did not do,
there is no evidence that any such failure to perform a contractual requirement caused
any of the alleged damages.183

179

Id.
D.I. 226 at 1-2; D.I. 204 at 9-15.
181
D.I. 226 at 2; D.I. 204 at 9-15. In its Counter-Statem ent of Facts opposing
DSU’s affirmative motion, R+B emphasizes it is not asking the court to make findings of
fact or accept R+B’s, or W-T’s, factual presentations as true; rather, R+B argues
disputed facts are an additional reason that precludes sum mary judgment in DSU’s
favor. D.I. 226 at 2 n.1.
182
D.I. 204 at 15-16.
183
Id. at 16.
180

43

W-T similarly argues DSU’s motion must be denied for lack of expert testimony
showing it breached the relevant standard of care, and/or because neither the facts nor
its contract entitle DSU to judgment.184 W-T’s affirmative motion asserts it is entitled to
summary judgment on DSU’s breach of contract clam because its contract contains
specific disclaimers as to liability for actions of the architect (R+B) or the panel wall
contractor (TCI), and reiterates that DSU’s expert is not qualified to opine as to W-T’s
purported liability.185 Moreover, W-T contends evidence demonstrating it did perform its
contractual obligations shows it is entitled to summary judgement.186 Separately, W-T
argues that if DSU’s breach of contract claim moves forward, it is entitled to summary
judgment that the damages DSU seeks are excessive and must be limited to the cost of
replacing the buckled panels with the same type of panels that were originally
installed.187
IV.

DISCUSSION–DSU, W-T, and R+B Cross-Motions for Summary Judgment
on DSU’s Count I (Breach of Contract)
According to W-T, DSU’s corporate designee, J.D. Bartlett, testified that the

following is a comprehensive list of its allegations pertaining to W-T:
failed to perform its services consistent with the skill and care ordinarily
provided by construction managers practicing in the same or similar
locality in breach of § 2.2 of the Contract;
failed to adequately review the design and construction documents or
submittals and shop drawings, and advise DSU of the effectiveness and
constructability of the panel wall system in breach of §§ 3.2.5, 3.2.8 and
184

D.I. 229 at 1.
D.I. 210 at 1.
186
Id. at 2.
187
Id. at 15-18.
185

44

3.3.19 of the Contract;
failed to notify DSU in a timely manner of these defects, as well as defects
noted in the panels themselves such as buckling, folding, oil-canning and
other material defects in the exterior surface of the panels;
failed to provide adequate onsite administration of the Contract or to
properly inspect the panel wall system installed for the Project, and failed
to identify material defects in the panel wall, including but not necessarily
limited to the installer’s failure to cut “V Channels” in the panels, which
was not in compliance with the drawings, shop drawings, and/or
specifications;
failed to ensure that the panel wall system was fabricated and installed in
a nondefective and workmanlike fashion such that it did not suffer the
material defects identified in the Complaint;
failed to properly monitor the performance of the parties fabricating and
installing the panel wall system to ensure compliance with the Contract
Documents, and failed to properly advise and consult with DSU in breach
of §§ 3.3.3, 3.3.9, 3.3.14, 3.3.15, and 3.3.24; and
failed to stop the Work in order to address these material defects and
issues in a timely manner as it had the ability to do under the terms of the
Contract Documents.188
DSU and W-T each argue summary judgment should be granted and/or denied
in their respective favors as to some, or all, of these allegations.
R+B sets forth the following averments against it from the TAC:189

188

D.I. 210 at 2-3 (citing D.I. 243-13 (Bartlett Dep.) at 54:21-55:3; D.I. 243-3,
Stip. Ex. 141, Ans. and Supp. Ans. 4 and 5; D.I. 180-2 ¶¶ 44-46, 55).
189
D.I. 204 at 2-3. With the exception of the title of R+B’s Contract, R+B
provided the emphasized terms in the following quoted paragraphs which it contends
pertain to its performance and subjective determinations as a licensed architect that
must be determined according to the standard of care. D.I. 204 at 2 n.1. R+B stresses
this is the point of its motion: to sustain the claims against R+B, expert opinion is
required that identifies the standard of care, how R+B failed to meet it, and how that
failure caused damages. Id. R+B asserts the claims cannot be sustained for lack of
the required expert opinion. Id.
45

a) On January 20, 2012, DSU and the architectural firm Richärd+Bauer
entered into that certain AIA® Document B132™ -- 2009, Standard
Form of Agreement Between Owner and Architect, Construction
Manager as Advisor Edition (the “Design Management Agreement”) . . .;190
b) The . . Agreement obligated R+B to provide construction plans and
specifications . . .;191
c) . . . further obligated R+B to provide “construction phase services,”
including periodic inspections . . ., evaluation of the work performed
during each phase and the provision of notice and information to DSU
. . .;192
d) . . . was contractually obligated to conduct at least thirty-six (36)
separate inspections . . . for the express purpose of particularly
familiarizing itself with the progress and quality of the work performed, and
specifically determining that such work was performed in a manner
consistent with the . . . its plans, specifications, product
recommendations and approvals;193
e) . . . obligated R+B to keep DSU reasonably informed regarding the
quality of the work performed and to report any deviations from the
contract documents or any defects or deficiencies observed in the
performance of the work [(See § 3.6.1.2)]; 194
f) . . . obligated R+B to review and approve all shop drawings and
submittals for the purpose of determining their conformity or
nonconformity with the plans and specifications . . .;195
g) . . . obligated R+B to “perform its services with the professional skill
and care ordinarily provided by architects practicing in the same or
similar locality under the same or similar circumstances.” (§ 2.2, at p. 6)

190

D.I. 180-2 ¶ 16. R+B objects to the TAC’s use of the term “Design
Management Agreement” because the contract is not so named and this term does not
appear in the contract. D.I. 204 at 2 n.2.
191
D.I. 180-2 ¶ 17.
192
Id. ¶ 18.
193
Id. ¶ 19.
194
Id. ¶ 20.
195
Id. ¶ 21.
46

[of Exh. 47]);196
h) The defects are due . . . to flaws in the design and specifications
prepared and approved by R+B for the Project. R+B failed to
adequately research and specify panels that would not result in the
defects experienced by the system as installed;197
i) The defects are also due . . . to R+B’s failure to fulfill its . . . duties (a) to
inspect and report on all design, specification, fabrication and installation
defects as required; (b) to provide DSU with ongoing and appropriate
information regarding the nonconforming work; and (c) to reject the
nonconforming work;198
j) . . . R+B also failed to review and properly approve or reject relevant
shop drawings, product data, samples and other submittals . . . for
compliance . . . and to report to DSU regarding any deficiencies . . .;199
k) Defendants’ various defective performances, either individually or in
conjunction with each other, directly and proximately caused a defective
and nonconforming panel wall system to be installed at the OSCAR; 200
and
l) The panel wall system is failing and will cost DSU millions of dollars to
remediate, and will cause damages to the existing structure and other
property as a result of remediation.201
DSU and R+B each argue summary judgment should be granted and/or denied
in their respective favors as to some, or all, of these allegations.
Before delving into the relevant facts cited in support of the parties’ respective
positions on the merits, the court must address the threshold issue of whether expert
testimony is required to support DSU’s breach of contract claims against R+B and W-T.

196

Id. ¶ 22.
Id. ¶ 36.
198
Id. ¶ 42.
199
Id. ¶ 43.
200
Id. ¶ 46.
201
Id. ¶ 47.
197

47

DSU alleges W-T and DSU breached distinct provisions of their respective
contracts. In response to defendants’ affirmative motions, DSU accuses defendants of
lumping all their alleged breaches into one amalgam to argue a professional negligence
standard of care applies to all. 202 In opposition to that tactic, DSU asserts the standard
of professional care applicable to claims founded on negligent conduct does not apply
to commonplace breaches that are based on clear and unam biguous terms, i.e.,
defendants’ obligation to report known errors, omissions, and defects in the work to
DSU.203 Relatedly, DSU maintains even if a negligence standard was applicable to
defendants’ alleged breaches of their reporting obligations, expert testimony is not
required because those breaches are so clear and obvious they fall within the common
knowledge of a lay juror.204 For this related argument, DSU contends the facts of Seiler
are analogous to those here and demonstrate the common knowledge exception is
applicable to defendants’ breaches.
At issue in Seiler was an architect’s negligent design plans and specifications for
a furniture store which failed to account for potential flooding.205 In defense to the
plaintiff furniture store’s allegation of negligence, the architect argued, inter alia, that
“expert testimony was required to establish the standard of care to which he was
bound.”206 The Delaware Supreme Court rejected the argument and affirmed the trial

202

D.I. 231 at 5.
Id. at 5-8.
204
Id. at 8-15.
205
Seiler v. Levitz Furniture Co. of Eastern Region, Inc., 367 A.2d 999, 1001-02
(Del. 1976).
206
Id. at 1006.
203

48

court’s finding against the architect: “the Trial Judge concluded that Seiler's mistake
was so apparent that plaintiff was not obliged to produce expert testimony at trial to
establish the bench mark by which his standard of care is measured. We agree.”207
The Seiler court reasoned:
In the final analysis Seiler, by his own testimony, admitted that an
investigation as to the possibility of flooding was necessary; he went on to
say that he had investigated that possibility. The crux of the Superior
Court decision is that in such investigation Seiler was “put on notice” that
flood waters had topped Naamans Road on previous occasions and that
he failed to design the warehouse accordingly. Id. at 1008.
Based on those facts, the Supreme Court held “[t]here is evidence to support the
conclusion that Seiler knew or should have known of the flooding potential of the area
and in accordance with settled law, we affirm it.”208
DSU maintains that, to the extent a professional standard of care is applicable,
the court’s reasoning in Seiler governs the determination of whether the common
knowledge exception applies here. 209
DSU also cites Jaeger v. Henningson, Duncan & Richardson, Inc. 210 for the
proposition that, in addition to their fundamental failure to report known errors and
omissions, Federal law equally provides that defendants’ failure to correct those errors

207

Id. at 1008.
Id. at 1009.
209
D.I. 231 at 9.
210
714 F.2d 773, 775 (8th Cir. 1983). In Jaeger, the Eighth Circuit applied South
Dakota law on the issue of an architect’s liability. Id. (citations omitted). As did Seiler,
the Eighth Circuit observed that issue generally requires expert testimony, but noted the
existence of a “common knowledge” exception that “permits juries to pass on issues of
negligence that do not require a knowledge of professional skills.” Id. (citation omitted).
208

49

does not require expert testimony.211 There, plaintiffs alleged the project architect
“negligently failed to detect and correct the shop drawings providing for a 14-gauge
steel stairway landing pan” where the architect’s design drawings and specifications
required a 10-gauge steel landing pan.212 The contract at issue required the architect to
review and approve certain drawings and submissions for conformance with other
documents;
The Architect shall review and approve shop drawings, samples, and
other submissions of the Contractor only for conformance with the design
concept of the Project and for compliance with the information given in the
Contract Documents.213
Discussing the architect’s failure to detect and correct an incorrect gauge of steel
on the shop drawings, the Jaeger court held:
There is nothing so highly technical about the facts of this case which is
not within the common experience or understanding of the average
laymen. The specifications called for the landing pans to be made from
10-gauge steel with angle stiffeners as required. The shop drawing,
however, provided that the landing pan in question should be made from
14-gauge steel without angle stiffeners or supports. Moreover, we
observe that there was expert testimony supporting the view that had the
pan been built with 10-gauge steel and angle stiffeners, it would not have
collapsed under circumstances similar to those of the accident in this
case.214
The Eighth Circuit, therefore, concluded the action against the architectural firm was
one for negligent failure to supervise the shop drawings, and because a jury of lay
persons could determine whether failure to supervise an employee was negligent, the

211

D.I. 231 at 13.
Jaeger, 714 F.2d at 775.
213
Id. at 775.
214
Id. at 776.
212

50

case did not require expert testimony on the appropriate standard of care.215
DSU contends the provision in Jaeger is substantively the same as the review
and approval requirements in R+B and W-T’s respective contracts.216 Like Jaeger,
DSU maintains the gravamen of the complaint against W-T and R+B is that they failed
to (i) review and approve submittals from TCI for conformance with the contract
documents or (ii) supervise its work and shop drawings to ensure that they
conformed.217 DSU asserts the submittals and the shop drawings failed to conform to
the contract documents in two material respects admitted by both defendants: (1) no
one provided the engineering of the panels for thermal loads required by R+B’s
Specification; and (2) the shop drawings omitted the V-Channels required not only by
the design drawings but also PFF’s Product Data. 218
Lastly, DSU contends “as to the breaches that do involve the application of a
professional standard of care, the expert opinion and testimony of Dannettel and his
team are sufficient to present a genuine issue of material fact to the jury.”219 In that
regard, and specifically in response to defendants’ cross-motions, DSU states there is a

215

Id. The court emphasized its previous distinction between actions against
architects for negligence-in-preparing plans and actions for negligence-in-supervising
plans, with only the former typically requiring expert testimony. Id. (citations omitted).
Because it found the gravamen of the complaints was a failure to supervise the shop
drawings pursuant to the contract and that negligence was the proximate cause of
plaintiffs’ injuries, the court determined expert testimony on the appropriate standard of
care was not required. Id.
216
D.I. 231 at 13 (citing D.I. 243-1, Stip. Ex. 47 (R+B Contract) § 3.6.4.2; D.I.
243-3, Stip. Ex. 94 (W-T Contract) §§ 3.2.5 & 3.3.19).
217
D.I. 231 at 14-15.
218
D.I. 231 at 15.
219
Id. at 2 (emphasis added); id. at 15-24.
51

dispute of fact as to whether the Specifications provided for a “delegated design” that
absolves R+B of its obligations for the Panel Wall System.220 DSU asserts Dannettel’s
expert opinion explains “the engineering and design standards required to properly
account for the single most important issue resulting in the defects in these panels.”221
As to the additional allegations subject to defendants’ motions that require expert
testimony, DSU avers “[t]he report discusses ALL of the Defendants’ failures to address
thermal loads, comprehensive engineering, sufficient validation and verification of
issues, and several other duties, as well as the facts showing that Defendants’ deficient
performance was the proximate cause of the resulting defects.”222 DSU specifically
references the sections of Dannettel’s Report opining as to specific breaches by
defendants of various standards of care and duties governing their performance,223 as
220

D.I. 231 at 2.
Id. (emphasis added). DSU emphasizes that separate from the question of
whether the design was delegated to TCI or not, defendants’ failure to notify DSU that
no one was engineering the panels is the basis for its summary judgment motion. Id. at
32-33 (“Even assuming the responsibility to design these panels properly was on [TCI’s]
shoulders, Defendants were on notice that [TCI] failed to fulfill that obligation.”).
222
Id. at 2.
223
Id. at 15-16 (citing D.I. 243-3, Stip. Ex. 147 §§ 4.0-4.3). DSU also singles out
allegations that W-T lists in its opening brief as requiring expert testimony. Id. at 2
(citing D.I. 210 at 13-14 (W-T arguing expert testimony was required on the following
allegations but, even if the Motion to Strike was denied, the evidence shows that: (1)
W-T was not contractually obligated to require R+B provide documentation to
demonstrate the Panel Wall System’s suitability and fitness for use on the OSCAR
Facility, because it had no design obligations; (2) W-T was not contractually obligated to
identify the methods available to contract the exterior wall panel work, or to evaluate
and determine whether the exterior wall panel work could effectively be executed as a
delegated design contract; (3) W-T was not contractually obligated to prequalify the
exterior wall panel contract bidders because DSU did not specif y that any bidders had
to be qualified under Chapter 69 of Title 29 of the Delaware Code; (4) W-T fulfilled
confirmed at the descope meeting, and through further consultation, that TCI: (a) was a
responsive and responsible bidder qualified to perform the work; (b) bid to perform the
221

52

well as Dannettel’s deposition testimony explaining his opinions.224
The court addresses the last category first, i.e., the allegations DSU identifies as
presenting questions of fact in light of Dannettel’s opinions expressed in his expert
report. Because the court granted the Motion to Strike, no admissible evidence is
available to create a question of fact it as to those allegations. Thus, summary
judgment is granted in favor of R+B and W-T on those allegations.
With respect to DSU’s allegation that R+B and W-T breached § 2.2 of their
respective contracts, it is clear expert testimony is required to describe the relevant
professional standards of care and how each defendant breached that standard.
Section 2.2 provides that each defendant “shall perform its services with the
professional skill and care ordinarily provided by [architects/construction manages]
practicing in the same or similar locality under the same or similar circumstances.”225
DSU’s corporate designee testified DSU intended to rely solely on its expert report to
support its claim that W-T breached § 2.2 of its contract.226 In light of the court’s grant
of the Motion to Strike, the court grants W-T’s motion for breach of contract with respect

entire contract, including the work outlined in Specification 07435; and (c) reviewed and
understood the technical requirements of the drawings and specifications; (5) W-T
clearly indicated in TCI’s Scope of Work that TCI was responsible for all of the work and
engineering delegated in the Specification; (6) W-T took the necessary steps to ensure
TCI and its subcontractors provided Panel engineering for the specific engineering
lapses identified by R+B, and despite TCI’s attempts to disclaim responsibility therefore;
and, (7) W-T addressed the absence of V-Channels in TCI’s shop drawings before TCI
began installing any panels on the project, and provided R+B with TCI’s response)).
224
D.I. 231 at 18-23.
225
See D.I. 243-1, Stip. Ex. 47 § 2.2; D.I. 243-3, Stip. Ex. 94 § 2.2 (emphasis
added).
226
D.I. 243-13 (Bartlett Dep.) at 81:3-22.
53

to § 2.2 and denies DSU’s motion on this section. For the same reason, R+B’s motion
is granted, and DSU’s motion is denied, as to R+B’s alleged breach of § 2.2.227
The court also addresses another specifically-alleged provision of R+B’s
contract to illustrate the legal support for the court’s grant of summary judgment to R+B
and W-T on each of the alleged breaches for which DSU relies on Dannettel’s Report
and testimony for support. Section 3.6.2.1 of R+B’s Contract require it perform
“construction phase services,” including periodic inspections of the work performed, to
determine whether such work was performed in a manner consistent with the plans and
specifications, and to keep DSU “reasonably informed” and report any deviations from
the contract documents or any defects or deficiencies observed.228 R+B states there is
no standard of care opinion on what its site visit inspections include, on what constitutes
keeping DSU “reasonably” informed, and on what an architect would consider to be a
deviation from the “performance specification” (delegated design) level plans and
specifications.229
DSU responds that § 3.6.2.1 is not the section upon w hich its summary judgment
motion is based, and reiterates that its motion against R+B is based on § 3.1.2, which
does not contain the “reasonably” informed caveat; § 3.1.2 mandates the “Architect
shall provide prompt written notice to the Owner if the Architect becomes aware of any

227

See D.I. 180-2 ¶ 22 (“The Design Management Agreement obligated
Richärd+Bauer to ‘perform its services with the professional skill and care ordinarily
provided by architects practicing in the same or similar locality under the same or
similar circumstances.’ (See [D.I. 243-1, Stip. Ex. 47] § 2.2[]).”).
228
D.I. 204 at 12 (citing D.I. 243-1, Stip. Ex. 47 § 3.6.2.1 (emphasis added)).
229
Id.
54

error, omission or inconsistency in such services or information.”230 In opposition to
R+B’s affirmative motion on § 3.6.2.1, DSU contends that keeping the owner
“reasonably” informed regarding the work is not so highly technical and complex that it
requires exert testimony.231
R+B’s reliance on the Delaware Superior Court’s decision in Oliver v. Bancroft
Const. Co.,232 applying Seiler, provides persuasive rebuttal to DSU’s argument. In
Oliver, the plaintiff tripped over the side of a newly-constructed concrete ramp, and was
injured.233 The parties opposing the relevant defendants’ motions for summary
judgment argued:
[N]umerous provisions in the relevant contracts demonstrate that the
architectural firms assumed oversight duties for the project. Additionally,
it was the responsibility of the architects to respond to the construction
manager's design questions, to inspect the renovations, and to ensure
that each phase of the construction process had been com pleted correctly
as designed. Thus, they contend, if the ramp was not installed as
originally designed, or if the ramp was negligently designed, the architects
are liable. . . .234
No expert opined that either architect breached the applicable standard of
care.235 The court explained its finding that expert testimony was required to assist the
fact finder interpret the relevant contract provisions as follows:
Certain terms are beyond the comprehension of lay persons. For
example, although the contracts may require the architect to inspect the
project, only an expert can provide guidance as to how often inspections
230

D.I. 231 at 7.
Id. at 7-8.
232
C.A. No. 09C-05-174-MMJ, 2011 WL 5042389 (Del. Super. Oct. 21, 2011).
233
Id. at *1.
234
Id. (emphasis added).
235
Id. at *2.
231

55

are to be made, as well as the nature and extent of any inspection .
Even if plaintiff . . . can demonstrate that the architects had, or should
have had, notice of the allegedly defective condition of the ramp, expert
testimony is necessary to establish the professional standard of care. A
lay person is unqualified to determine whether and when the architect
should have been on notice, and what steps the architect may have been
required to take to rectify the situation.
Other issues in this case are whether the design was defective, or
whether the construction was completed in accordance with the plans
prepared by the architect. Again, these question require standard-of-care
expert testimony. It is beyond the ability of an unassisted lay person to
ascertain who is responsible for interpretation of design plans and how
any construction professional should interpret the architect’s design.236
Because no expert opined that either architect breached any professional
architectural standard of care, or that any alleged breach caused the injury, the court
granted the architects’ motion and dismissed the claims against them with prejudice.237
Here, the Oliver decision leads to court to conclude expert testimony is
necessary to show R+B breached its professional standard of care with respect to
§ 3.6.2.1 of R+B’s Contract.238 Because there is no admissible expert testimony to
make that showing, R+B’s motion for summary judgment is granted. Section 4.2.3 of
the Supplementary General Conditions to W-T’s Contract contains similar language
requiring W-T to keep DSU “reasonably informed” of certain deviations, defect, and
deficiencies.239 To the extent DSU’s breach of contract claim is based on that section, it
236

Id. (emphasis added).
Id. at *3.
238
The court notes DSU does not make any attempt to distinguish Oliver, or
otherwise argue why its reasoning does not apply to the contracts at issue here.
239
D.I. 243-1, Stip. Ex. 48 § 4.2.3 (“The Construction Manager will determine in
general if the Work observed is being performed in accordance with the Contract
Documents will keep the Owner reasonably informed of the progress of the Work, and
237

56

is also dismissed for lack of expert testimony showing W-T breached its professional
standard of care with respect to that provision.
Based on the above reasoning, and DSU’s position that Dannettel’s testimony
and report raises questions of fact precluding a grant of R+B and W-T’s motions, the
court grants summary judgment in favor of R+B and W-T on their alleged breaches of
contract that DSU avers are shown through Dannettel’s now-stricken Report and
testimony. Those allegations are specifically found in §§ 4.3.1 (R+B) and 4.3.3 (W -T)
of the Thornton Tomasetti Report, and examples from Dannettel’s deposition testimony
cited by DSU that purportedly demonstrate defendants’ negligent acts.240
The court next turns to the category of breaches DSU contends does not require
expert testimony, i.e., commonplace breaches of clear and unambiguous terms, or are
within the common knowledge exception whereby a lay person would understand the
alleged breach without the assistance of expert testimony.
DSU asserts expert testimony regarding a negligent breach of a standard of care
is not required for every commonplace breach of contract.241 As to those breaches of
contract, DSU argues defendants cannot impose an additional professional negligence
standard where negligence is not the basis of the claim or defendants’ liability.242 As an
example of such breach, DSU posits that if a contractor fails to pay subcontractors, an

will report to the Owner and Architect (I) known deviations from the Contract
Documents and the most recent Project schedule and (2) defects and deficiencies
observed in the Work.”) (emphasis added).
240
See D.I. 243-3, Stip. Ex. 147 §§ 4.3.1, 4.3.3; D.I. 231 at 15-16, 18-23.
241
D.I. 231 at 6.
242
Id. at 1.
57

owner is not required to prove that it breached this straightforward obligation but also
that it somehow breached a duty of care by doing so.243
DSU places W-T and R+B’s alleged breaches of what it describes as the clear
an unambiguous notice requirements in their contracts into the category not requiring
additional proof that defendants “negligently” failed to provide any notice at all to DSU.
DSU relies on the following specific sections from each defendants’ contract requiring
that they report errors, omissions, defects, deficiencies, or inconsistencies in the
submittals, information, or services provided to DSU for that argument:
Richärd+Bauer Contract § 3.1.2: The Architect shall provide prompt
written notice to the Owner if the Architect becomes aware of any error,
omission or inconsistency in such services or information.244
Whiting-Turner Contract § 3.3.14: The Construction Manager shall
determine in general that the Work of each Contractor is being performed
in accordance with the requirements of the Contract Documents and notify
the Owner, Contractor and Architect of defects and deficiencies in the
Work.245
DSU states that, despite those requirements, each defendant repeatedly failed to
notify DSU of material errors, omissions and defects in the submittals and performance
regarding this Panel Wall System. DSU submits the facts concerning their failures to
report to DSU are undisputed. 246
At least with respect to R+B’s contract, the court agrees with DSU that the binary
243

Id. at 6. As another example, DSU contends if a contractor fails to perform
work altogether, an owner is not subject to an additional burden to prove that the
contractor was also negligent, but only that it was required to do the work and did not.
Id.
244
D.I. 243-1, Stip. Ex. 47 § 3.1.2.
245
D.I. 243-3, Stip. Ex. 94 § 3.3.14.
246
D.I. 213 at 31.
58

question of whether it provided the specified notice does not require expert testimony
as to R+B’s professional standard of care. R+B’s Contract is explicit in requiring
“prompt” “written notice” “to the Owner [DSU]” if it “becomes aware” of “any error,
omission or inconsistency” of the relevant services or information. This is a different
question than addressed in Oliver as to the timing and extent of inspections, or whether
or when the architect was on notice, as well as what may have been required by the
architect to rectify the situation. 247 There is no indication in Oliver that the architects’
contracts included notice provisions that were allegedly breached. In contrast to Oliver,
which was solely a professional negligence action, DSU alleges breach of contract
claims, some aspects of which implicate professional negligence, but other aspects
may not. Here, either R+B knew of “any error, omission or inconsistency” and it gave
prompt written notice to DSU, or it did not. Such a straightforward question does not
require expert testimony for its answer.
The court arrives at a different conclusion with respect to the less explicit
notification provision of W-T’s contract that DSU specifies was breached. W-T was
required to “determine in general” whether each contractor’s Work was “being
performed in accordance with” contract document requirements, and “notify the Owner,
Contractor and Architect” “of defects and deficiencies” in the Work.248 Consistent with
Oliver, expert testimony is required as to a CM as Advisor’s professional standard of
care. A lay person is unqualified to determine how a CM as Advisor would “generally”

247
248

See Oliver, 2011 WL 5042389, at *2.
See D.I. 243-3, Stip. Ex. 94 § 3.3.14.
59

determine whether work was “in accordance” with contract document requirements, as
well as, when, and how, W-T was to “notify” DSU, the Owner, Contractor, and Architect
of (some, any, all?) “defects and deficiencies in the Work.” Are whatever notifications
that are required to be in the made same way and have the same timing when made to
each entity? Because there is no admissible expert evidence to assist the finder of fact
in answering these questions, summary judgment is granted in favor of W-T and
against DSU on the alleged breach of § 3.3.14 of its contract.249
Because the court determines the entirely of DSU’s breach of contract
allegations against W-T are beyond the common knowledge of a lay person and/or
249

To the extent they may, or may not, overlap with alleged breaches the court
specified, above, as requiring dismissal for lack of expert testimony on W-T’s
professional standard of care, the court comes to the same conclusion with regard to
several other provisions of W-T’s contract that DSU references, see D.I. 213 at 5-6; D.I.
231 at 13, and determines each are outside the common knowledge of a lay person as
to whether a CM met the recited obligations. These provisions include W-T contract
provisions recited in: § 3.3.19 (CM “shall promptly review all Shop Drawings, Product
Data, Samples and other submittals from the Multiple Prime Contractors for compliance
with the submittal requirements of the Contract, coordinate submittals with information
contained in related documents, and transmit to the Architect those that the
Construction Manager recommends for approval.”); § 3.2.5 (CM to expeditiously review
the Architect’s review design documents for constructability and “provide
recommendations to the Owner and Architect on constructability”); § 3.2.8 (CM to
“consult with the Owner and Architect and make recommendations whenever the
Construction Manager determines that design details adversely affect constructability”);
§ 3.3.9 (CM to “endeavor to obtain satisfactory performance from each of the Multiple
Prime Contractors [and] recommend courses of action to the Owner when requirements
of a Contract are not being fulfilled”): and § 3.3.15 (CM “shall be responsible for the
Construction Manager’s negligent acts of omissions” in connection with its obligations).
The same conclusion is reached with respect to provisions not specified in DSU’s
briefing, but identified by its corporate designee as implicating W-T’s obligations, i.e.,
§ 3.3.3 (CM “shall provide on-site administration of the Contracts for Construction with
the Architect as set forth below and in [the] . . . General Conditions of the Contract for
Construction”), and § 3.2.24 (CM “shall assist the Architect in conducting inspections to
determine whether the Work or designated portion thereof is substantially complete”).
60

require expert testimony to support those allegations, W-T’s motion for summary
judgment is granted, and DSU’s motion for summary judgment is denied. In light of this
determination, the court need not address W -T’s separate argument seeking summary
judgment limiting the amount of damages sought by DSU and it is denied as moot.
The court returns now to the parties’ arguments as to R+B’s alleged breach of its
notification obligations that either do not implicate a professional standard of care or do
not require expert testimony because they fall in the under the “common knowledge”
exception as discussed in Seiler and Jaeger.
The court determines genuine issues of material fact preclude summary
judgment in favor of either party. DSU alleges R+B’s complete failure to conduct any
investigation of PFF’s product before approving it as a manufacturer in Specification
07435, as opposed to the question of whether it conducted an “adequate” investigation,
is not so “highly technical and complex” that a lay person could not understand a
breach occurred.250 As supporting evidence of R+B’s alleged failure, DSU cites the
deposition testimony of R+B corporate designee Stephen J. Kennedy.251 R+B disputes
the alleged facts, explaining why Kennedy’s testimony does not unequivocally support
DSU’s assertions, and citing emails purportedly documenting and supplementing that
testimony that raises questions of fact on the issue. 252 DSU’s allegation that the
subsequent bidding process confirmed the PFF product was unsuitable and was not

250

D.I. 213 at 7; D.I. 231 at 10.
D.I. 213 at 8-9 (citing D.I. 243-17 (Kennedy Dep.)).
252
D.I. 226 at 6-8.
251

61

reported to DSU253 is likewise disputed by R+B’s proffered evidence and argument to
the contrary.254 Similar factual disputes as to DSU’s allegation that R+B’s knew PF’s
product was not suitable for the architectural application specified255 are shown by
competing evidence and argument presented by R+B on that issue. 256 The court
reaches the same conclusion with respect DSU’s allegations concerning R+B’s failure
to notify it that no one engineered the panels as required by Specification 07435,

257

and that R+B ignored the absence of V-Channels, or “thermal breaks,” purportedly
required by the Design Drawings and PFF Product Data. 258
V.

CONCLUSION–DSU, W-T, and R+B Cross-Motions for Summary Judgment
on DSU’s Count I (Breach of Contract)
For the reasons discussed above:

1.

Delaware State University’s Motion for Partial Summary Judgment (D.I. 211) is
DENIED;

2.

Whiting-Turner Contracting, Co.’s Motion for Summary Judgment (D.I. 208) is
GRANTED in part and DENIED in part as MOOT.; and

3.

Richärd+Bauer, LLC’s Motion for Summary Judgment (D.I. 203) is GRANTED
in part and DENIED in part.

253

D.I. 213 at 9-10.
See D.I. 226 at 8-11.
255
D.I. 213 at 12-19.
256
See D.I. 11-13.
257
D.I. 213 at 19-25.
258
Id. at 25-27. See D.I. 226 at 13-15 (R+B presenting evidence and argument
raising genuine issues of material fact as to these issues). R+B’s alleged failure to
report deficiencies in the work, specifically exterior panel buckling, D.I. 213 at 27-28, is
addressed by R+B raising questions of fact, inter alia, as to whether the referenced
buckling referred to a certain unrelated “wrinkle” in an interior side of one of the panels.
See D.I. 226 at 16-17.
254

62

Czar Engineering, LLC’s Motion for Summary Judgment
Thomas Company, Inc.’s Motion for Partial Summary Judgment
Richärd+Bauer, LLC’s Motion for Summary Judgment
Czar moves for summary judgment in its favor as to all claims asserted against it
by DSU, R+B, Liberty Mutual, PFF, and Ashford.259 Czar also moves for partial
summary judgment as to the claims of TCI limiting any liability to TCI in accordance with
its contract.260
TCI moves for summary judgment that: (1) Czar’s limitation of liability clause is
unenforceable; (2) the Panel Wall design was not delegated to TCI; (3) R+B’s Panel
Wall System was not constructible; and (4) DSU’s proposed repairs constitute
economic waste.261
R+B moves for summary judgment in its favor and against all other parties on all
claims against R+B.262 The court has ruled, above, on R+B’s motion for summary
judgment as to DSU’s breach of contract claim against R+B. As relevant to this section
of the opinion, the court considers R+B’s motion for summary judgment in its favor as to
259

D.I. 215 (Czar Engineering, LLC Motion for Summary Judgment). Briefing on
the motion is found at D.I. 216 (Czar Opening Brief); D.I. 224 (TCI Answering Brief); D.I.
225 (R+B Answering Brief); D.I. 231 (DSU Consolidated Answering Brief); and D.I. 241
(Czar Reply Brief).
260
D.I. 215.
261
D.I. 217 (Thomas Company, Inc. Motion for Partial Summary Judgment).
Briefing on the motion is found at D.I. 218 (TCI Opening Brief); D.I. 225 (R+B
Answering Brief); D.I. 230 (Czar Answering Brief); D.I. 231 (DSU Consolidated
Answering Brief); and D.I. 235 (TCI Reply Brief).
262
D.I. 203 (Richärd+Bauer, LLC Motion for Summary Judgment). Briefing on
the motion is found at D.I. 204 (R+B Opening Brief); D.I. 227 (R+B Amendment to
Opening Brief); D.I. 224 (TCI Answering Brief); D.I. 228 (W-T Answering Brief); and D.I.
233 (R+B Reply Brief).
63

the cross-claims against it by the other co-defendants.263
I.

BACKGROUND–Czar, TCI, and R+B Motions for Summary Judgment
The following facts relevant to the motions discussed in this section of the

opinion are taken from the parties’ stipulated facts, exhibits, and deposition excerpts.
As previously discussed, this case concerns Structural Insulated Panels or
“SIPs” and their integration into the Panel Wall System that includes the SIPs, the
design, construction and installation of the SIP connections to the building structure,
and other related elements (such as connectors, sealants, and the like) installed as part
of constructing the OSCAR Facility on DSU’s main campus in Dover.264 Relevant to
Czar’s participation in the Project, this case also involves the structural design of the
panel connections with the OSCAR Facility.265
DSU entered into a contract with TCI on or about December 27, 2013 titled AIA®
Document A132™–2009, Standard Form of Agreement Between Owner and
Contractor, Construction Manager as Adviser Edition for the Wall System (the “DSUTCI Contract”).266 The general terms and conditions governing the DSU-TCI Contract
were the AIA232-2009 General Conditions of the Contract for Construction,
Construction Manager as Adviser Edition,267 and all modifications thereto found in
“Section 00730–Supplementary General Conditions to the Contract.” 268

263

D.I. 203; D.I. 204 at 16-19.
D.I. 195, Stip. Fact 1.
265
Id., Stip. Fact 2.
266
Id., Stip. Fact 14; D.I. 243-3, Stip. Ex. 139.
267
D.I. 243-1, Stip. Ex. 48.
268
D.I. 243-3, Stip. Ex. 140.
264

64

The General Conditions governing DSU and TCI’s relationship states:
§ 1.1.2 The Contract. [. . .] The Contract Documents shall not be
construed to create a contractual relationship of any kind [. . .] (5) between
the Owner and a Subcontractor [. . .], or (7) between any persons or
entities other than the Owner and Contractor.[ . . .] 269
On or about March 6, 2014, Czar issued a written subcontract proposal to TCI for
engineering services in connection with the Panel Wall System, which TCI signed that
day and returned along with a purchase order (“TCI-Czar PO”).270 Czar’s contract with
TCI incorporates by reference, and physically includes, “CZAR ENGINEER, L.C.C.
CONTRACT PROVISIONS” (“TCI-Czar Subcontract”) which provides:
1. CONTRACT - These Contract Provisions and the accompanying
Proposal and Fee Schedule constitute the entire Ag reement of the
parties, and supersede all prior negotiations, agreements, and
understandings with respect to the subject matter of this Agreement.
These Contract Provisions shall take precedence over any inconsistency
or contradictory provisions contained in any proposal, contract, purchase
order, requisition, notice to proceed, or like document. The parties may
only amend this Agreement by a written document duly executed by both
parties.
[. . .]
13. LIABILITY - Czar Engineering, LLC and client each recognize the
risks, rewards and benefits of the work that is the subject of this
agreement. In recognition of this reality, consultant and client agree that,
to the fullest extent permitted by law, the total liability, in the aggregate, of
the consultant, and its agents, servants and employees, for all injuries,
damages (including damage to the project itself), losses, expenses
or claims whatsoever related to services provided by the consultant under
this agreement, including but not limited to negligence, errors, omissions,
Strict liability, breach of contractor any claim whatsoever, shall not exceed
six times the total fees paid to the consultant under this agreem ent, or
269

D.I. 243-1, Stip. Ex. 48 § 1.1.2 (emphasis added).
D.I. 195, Stip. Fact 20; D.I. 243-1, Stip. Ex. 2; see also D.I. 243-11 (Thomas
Dep.) at 81:9-21.
270

65

S50,000, whichever is greater. Furthermore, consultant and client agree
that the consultant's liability shall not exceed the available amount of the
professional liability insurance coverage for the sub-consultant at the time
that the claim is resolved either by settlement, arbitration award or final
judgment. Any requests by client that the sub-consultant increase its
limits of professional liability insurance coverage must be made in writing
to consultant within fourteen (14) days of the date of this agreement.
[. . .]
15. INDEMNIFICATION - Czar Engineering, L.L.C. shall, subject to the
limitation of liability contained in Section 13, indemnify the Client for any
loss or damage caused solely by the professional negligence of Czar
Engineering, L.L.C. in performance of the services under this
Agreement.271
The purchase order that TCI emailed back to Czar after signing the contract
contains the language as follows:
THIS ORDER IS COMPLETE WITH ALL THE ITEMS NECCESSARY
[sic] AND INCIDENTAL THERE TO IN STRICT ACCORDANCE WITH
THE ENTIRE CONTRACT DOCUMENTS PREPARED [sic] THE OWNER
AND/OR THEIR CONSULTANT, INCLUDING WITHOUT LIMITATION:
THE GENERAL, SPECIAL AND OTHER CONDITIONS, ALL
SPECFICIATIONS, [sic], DRAWINGS, AND INVITATIONS FOR BIDS,
BULLETINS, ADDENDA AND MODIFICATIONS THERETO. NO OTHER
CHANGES WILL BE ACCEPTED EXCEPT THOSE STATED HEREIN
AND AS PER THE CONTRACT DOCUMENTS. PROVIDE WRITTEN
DOCUMENTATION INDICATING IMPACTS FOR CHANGES AND
REVISIONS, WHEN REQUESTED.272
TCI’s Corporate Designee, George J. Thomas, testified that, pursuant to the TCICzar Subcontract, Czar provided engineering calculations and design detailing for the
connections which held the Panels to the exterior of the building.273 TCI also entered

271

D.I. 243-1, Stip. Ex. 2 at “CZAR ENGINEER, L.C.C. CONTRACT
PROVISIONS” ¶¶ 1, 13, 15 (emphasis added).
272
D.I. 243-1, Stip. Ex. 2 (emphasis added).
273
D.I. 216 at 5 (citing D.I. 243-11 (Thomas Dep.) at 81:9-82:20, 260:17-262:4).
66

into agreements with Ashford to provide computer aided design drafting services and
separately with PFF to manufacture and supply the SIPs.274
Czar had no other contract with any other party involved in the Project. 275
In addition to its contract with TCI, DSU also entered into written agreements
with R+B to provide overall design services, and W-T to provide construction
management services for the Project.276
The original cost of the SIPs was $749K.277 Sometime early in 2015, following
installation of the SIPs but before full construction of the building was completed in the
summer of 2015, some Panels began to exhibit deformations.278 The condition of the
building façade has existed for over four years since the problems were noted, though
the conditions have progressed.279 There were no personal injuries that resulted from
the alleged defects. No water intrusion has been noted, but Bartlett testif ied he
believed advanced study would be required to make a definitive determination.280 The
building is occupied and being used for its intended purpose. 281 No equipment has
been damaged because of the alleged defects.282 DSU’s corporate designee agreed
that there have been no resulting effects from the panels’ present condition “other than

274

Id.
Id.
276
Id.
277
D.I. 243-3, Stip. Ex. 96.
278
D.I. 243-13 (Bartlett Dep.) at 98:4-18; D.I. 216 at 5.
279
Id. (Bartlett Dep.) at 98:19-99:7.
280
Id. (Bartlett Dep.) at 99:11-100:2.
281
Id. (Bartlett Dep.) at 100:3-14.
282
Id. (Bartlett Dep.) at 101:8-10.
275

67

it doesn’t look good.”283
II.

DISCUSSION–Czar, TCI, and R+B Motions for Summary Judgment
A.

Positions of the Parties–Czar, TCI, and R+B Motions for Summary
Judgment
1.

Czar

Czar argues it is entitled to summary judgment because:
1. As to DSU’s Count I (Breach of Contract), there is no contract between DSU
and Czar, and the General Conditions governing the Project expressly state that DSU is
not a third-party beneficiary of the agreement between Czar and TCI;284
2. As to DSU’s Count III (Negligence), the Economic Loss Doctrine precludes
any tort claims, and no exception applies; 285
3. As to DSU’s Count IV (Unjust Enrichment), DSU’s relationships with all codefendants are governed by valid contracts;286
4. As to all cross-claims for contribution, the co-defendants are not tort-feasors
as there is no underlying tort–merely alleged breaches of contractual obligations;287 and
5. As to all indemnification claims asserted by all defendants, with the exception
of TCI, there are contracts between them.288
6. Czar also argues it is entitled to partial summary judgment limiting its liability

283

Id. (Bartlett Dep.) at 102:13-19.
D.I. 216 at 2.
285
Id.
286
Id.
287
Id.
288
Id.
284

68

because the TCI-Czar Subcontract expressly limits Czar’s ultimate liability to $50,000. 289
2.

DSU

DSU argues Czar’s motion should be denied because as DSU is an intended
third-party beneficiary of its subcontracts with TCI.290
3.

TCI

TCI argues that Czar’s motion for summary judgement seeking enforcement of
its limitation of liability provision should be denied because the provision is void under
6 Del. C. § 2704 which prohibits the enforcement of an agreement, relative to the
construction of a building, “purporting” to indemnify or hold a contracting party
harmless, as against public policy.291 TCI also affirmatively moves for summary
judgment that Czar’s limitation of liability provision is void under § 2704 and/or that
provision is ambiguous.292
Additionally, TCI affirmatively moves for summary judgment in its favor that:
1.

The Panel Wall System Design was not delegated to TCI;293

2.

R+B’s Panel Wall System was not constructible; 294 and

3.

DSU’s proposed repairs constitute economic waste.295
4.

R+B

R+B opposes Czar’s motion asserting Czar’s purported limitation of liability is
289

Id.
D.I. 231 at 4.
291
D.I. 224 at 1.
292
D.I. 217; D.I. 218 at 1.
293
D.I. 218 at 2-5, 9-15.
294
Id. at 5-6, 16-17.
295
Id. at 7, 19-20.
290

69

untenable–contractually, statutorily, under applicable precedent, and as a violation of
public policy.296
R+B also affirmatively moves for summary judgment in its favor on all crossclaims asserted against it.297 R+B argues no defendant can sustain a prima facie crossclaim against it because they are not supported by required expert opinion on the
standard of care, the economic loss doctrine bars the cross-claims in tort, and R+B’s
contract was with DSU such that there are no cognizable cross-claims sounding in
contract.298 R+B’s Amended Opening Brief contends it is entitled to summary judgment
on W-T’s cross-claim for Implied in Contract Indemnification because there is no
relationship between R+B and W-T on which the cause of action is based. 299
B.

Analysis–Czar, TCI, and R+B Motions for Summary Judgment

The court first addresses Czar’s arguments for summary judgment in its favor on
DSU’s breach of contract (Count I), negligence (Count III), and unjust enrichment
claims (Count IV). Following resolution of DSU’s claims, Czar’s arguments for summary
judgment in its favor on all contribution and indemnification cross-claims are addressed.
Next the court resolves Czar and TCI’s cross-motions for summary judgment on Czar’s
limitation of liability. Finally, as to Czar’s motion, the court resolves R+B’s arguments in

296

D.I. 225 at 2.
D.I. 203.
298
D.I. 204 at 2.
299
D.I. 227 at 1-3. With respect to W-T’s cross-claim for Implied Contract
Indemnification, R+B originally argued there was no such cause of action. D.I. 204 at
17-18. After filing its opening brief, W-T made R+B aware that Delaware courts have
recognized that cause of action, and R+B filed an amended opening brief making its
current argument. D.I. 227 at 1-3.
297

70

its affirmative motion that it is entitled to summary judgment on Czar’s cross-claims
asserted against R+B. The court concludes this section of the opinion by addressing
the remaining issues in the affirmative motions of TCI and R+B, respectively.
DSU’s breach of contract claim alleges it “was an intended third-party beneficiary
of the agreements reached between Thomas and its subcontractors and suppliers . . .
Czar Engineering . . . for the products, services and ongoing information they were
obligated to provide specifically for the benefit of DSU[.]”300 and “[u]pon information and
belief . . . Czar Engineering . . . was duly bound by the terms and conditions of [its] . . .
agreement[], and such obligations extend to DSU as an intended third-party beneficiary
of those agreements.”301 Czar asserts it is entitled to summary judgment on that claim
because there is no contract between DSU and Czar, and the General Conditions
governing the Project expressly state that DSU is not a third-party beneficiary of the
agreement between Czar and TCI.302
Whether a party is a third party beneficiary is a question of law for the court.303
Because it is an issue of substance rather than procedure, it is governed by the state
law of the forum.304 “‘It is well settled in Delaware that a third-party may recover on a
contract made for his benefit. . . . But in order for there to be a third party beneficiary,
the contracting parties must intend to confer the benefit.’”305 “The intent to confer a third
300

D.I. 180-2 ¶ 52.
Id. ¶ 53.
302
D.I. 216 at 2.
303
Pierce Associates, Inc. v. Nemours Found., 865 F.2d 530, 535 (3d Cir.1988).
304
Id.
305
Id. (quoting Ins. Co. of North America v. Waterhouse, 424 A.2d 675, 679 (Del.
Super. 1980)); see also Hadley v. Shaffer, No. CIV.A. 99-144-JJF, 2003 W L 21960406,
301

71

party beneficiary benefit is to be determined from the language of the contract.”306 The
party attempting to assert third-party beneficiary status bears the burden of
demonstrating that status.307
Thus, the intent to confer third-party beneficiary status on DSU must be
determined from the language of the TCI-Czar Subcontract. As in Pierce, however,
“[t]he language of a contract . . . cannot be divorced from the context in which it was
written. Here, we are dealing with a general contract and a subcontract in the
construction industry.”308
The court determines that DSU is not an intended third-party beneficiary of the
TCI-Czar Subcontract.
DSU argues Czar entered into its subcontract with TCI knowing it was for the
benefit of DSU.309 The reality that DSU would ultimately benefit from the TCI-Czar

at *5 (D. Del. Aug. 12, 2003) (“Under Delaware law, the intention of the contracting
parties is paramount in determining whether others have standing as third-party
beneficiaries.” (citing See E.I. DuPont & Co. v. Rhone Poulenc Fiber & Resin
Intermediates, S.A.S., 269 F.3d 187, 197 (3d Cir. 2001)).
306
Pierce, 865 F.2d at 535 (citing Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver,
Inc., 336 A.2d 211, 215 (Del.1975); Royal Indemnity Co. v. Alexander Indus., Inc., 211
A.2d 919, 920 (1965)).
307
See Corrugated Paper Prods., Inc. v. Longview Fibre Co., 868 F.2d 908, 910
(7th Cir. 1989) (applying New Jersey law, which, like Delaware law, “‘focuses on
whether the parties to the contract intended others to benef it from the existence of the
contract, or whether the benefit so derived arises merely as an unintended incident of
the agreement’”) (quoting Broadway Maint. Corp. v. Rutgers, the State Univ., 447 A.2d
906, 909 (N.J. 1982)); see also Beth Schiffer Fine Photographic Arts, Inc. v. Colex
Imaging, Inc., C.A. No. 10-cv-5321 (MHW), 2014 WL 1908500, at *4 (D.N.J. May 13,
2004) (“The party attempting to assert third party beneficiary status bears the burden.”
(applying New Jersey Law) (citing Corrugated Paper Prods., 868 F.2d at 910)).
308
Pierce, 865 F.2d at 535.
309
D.I. 231 at 37.
72

Subcontract does not establish that DSU was an intended third-party beneficiary of that
contract. “In every construction subcontract the owner is the one which ultimately
benefits from its performance. However, this does not create a third party beneficiary
relationship.”310
The Pierce court explained the usual industry practice in the construction field.
Typically when major construction is involved an owner has neither the
desire nor the ability to negotiate with and supervise the multitude of
trades and skills required to complete a project. Consequently an owner
will engage a general contractor. The general contractor will retain,
coordinate and supervise subcontractors. The owner looks to the general
contractor, not the subcontractors, both for performance of the total
construction project and for any damages or other relief if there is a
default in performance.
[…]
Thus the typical owner is insulated from the subcontractors both during
the course of construction and during the pursuit of remedies in the event
of a default. Conversely, the subcontractors are insulated from the owner.
The owner deals with and, if necessary, sues the general contractor, and
the general contractor deals with and, if necessary, sues the
subcontractors. These typical construction contract relationships have
long been recognized.311
Pierce and the Delaware Supreme Court in Oliver B. Cannon & Son, Inc. v.
Dorr-Oliver, Inc., each noted this usual contractual relationship creates a “buf fer”

310

Pierce, 865 F.2d at 538 (emphasis added); see also Hadley v. Shaffer, No.
CIV.A. 99-144-JJF, 2003 WL 21960406, at *5 (D. Del. Aug. 12, 2003) (“Thus, if it was
not the promisee's intention to confer direct benefits upon a third party, but rather such
third party happens to benefit from the performance of the promise either coincidentally
or indirectly, then the third party will have no enforceable rights under the contract.”
(citing Guardian Constr. Co. v. Tetra Tech Richardson, Inc., 583 A.2d 1378, 1386 (Del.
Super. 1990)).
311
Pierce, 865 F.2d at 535-36.
73

between the owner and subcontractors. 312
Examining the DSU-TCI Contract and TCI-Czar Subcontract reveals no intent to
create third-party beneficiary status on DSU with respect to Czar.
TCI’s obligations to DSU are governed by the AIA ® Document A132™--2009,
Standard Form of Agreement Between Owner and Contractor, Construction Manager
as Adviser Edition for the Wall System, executed on or about December 27, 2013. 313
Article 1 of that contract incorporates the general terms and conditions enumerated by
the AIA232-2009 General Conditions of the Contract for Construction, Construction
Manager as Adviser Edition (“DSU-TCI Contract”).314 The general conditions which
govern the DSU-TCI relationship state:
§ 1.1.2 The Contract. [. . .] The Contract Documents shall not be
construed to create a contractual relationship of any kind […] (5) between
the Owner and a Subcontractor [. . .], or (7) between any persons or
entities other than the Owner and Contractor.[. . .] 315
Thus, the DSU-TCI Contract explicitly disclaims an intent to create third-party
beneficiary status on DSU with respect to TCI’s subcontractors on the Project. As
stated in Pierce, however, the court’s analysis “cannot be divorced from the context in
312

Id. at 536 (“In Cannon the Delaware Supreme Court referred to the ‘buffer
zone’ which a general contract creates between the owner and a subcontractor. . . .”);
Cannon, 336 A.2d at 216 (finding the “buffer zone” in that case extinguished where the
subcontract evidence of intention to confer third-party beneficiary status on owner); see
also Galvagna v. Marty Miller Constr., Inc., No. CIV. A. 96L-01-015, 1997 W L 720463,
at *3 (Del. Super. Sept. 19, 1997) (“In construction m atters, the parties generally craft
their contracts to insulate the owner from the subcontractor; the owner and general
contractor deal with one another while the general contractor and subcontractor deal
with one another.” (citing Pierce, 865 F.2d at 535-39)).
313
D.I. 195, Stip. Facts, ¶ 14; D.I. 243-3, Stip. Ex 139.
314
D.I. 243-2, Stip. Ex. 48.
315
D.I. 243-2, Stip. Ex. 48, § 1.1.2.
74

which it was written. Here, we are dealing with a general contract and a subcontract in
the construction industry.”316 After review of the TCI-Czar PO, the court concludes it
also does not evidence an intent to bestow that third-party beneficiary status on DSU.
The PO provides:
THIS ORDER IS COMPLETE WITH ALL THE ITEMS NECCESSARY
[sic] AND INCIDENTAL THERE TO IN STRICT ACCORDANCE WITH
THE ENTIRE CONTRACT DOCUMENTS PREPARED [sic] THE OWNER
AND/OR THEIR CONSULTANT, INCLUDING WITHOUT LIMITATION:
THE GENERAL, SPECIAL AND OTHER CONDITIONS, ALL
SPECFICIATIONS, [sic], DRAWINGS, AND INVITATIONS FOR BIDS,
BULLETINS, ADDENDA AND MODIFICATIONS THERETO. NO OTHER
CHANGES WILL BE ACCEPTED EXCEPT THOSE STATED HEREIN
AND AS PER THE CONTRACT DOCUMENTS. PROVIDE WRITTEN
DOCUMENTATION INDICATING IMPACTS FOR CHANGES AND
REVISIONS, WHEN REQUESTED317
DSU argues this language shows Czar is “subject to performing its work in strict
compliance with the contract documents and General Conditions prepared by the
Owner.”318 That argument is little more than saying the language provides DSU, as
owner, will benefit from the TCI-Czar Subcontract; the expected result of every
subcontract.
DSU also argues the TCI-Czar Subcontract does not disclaim the creation of a
third-party beneficiary relationship between the Owner and subcontractor. 319 This is
precisely the wrong inquiry; the court must determine whether there was an intent to
create third-party beneficiary status on the part of DSU, not whether such status exists

316

Pierce, 865 F.2d at 535.
D.I. 243-1, Stip. Ex. 2.
318
D.I. 231 at 38.
319
D.I. 231 at 38.
317

75

absent disclaimer.320 The language quoted above evidences no such intent.
Additionally, DSU does not point to any other evidence from the TCI-Czar
Subcontract showing an intent that DSU would have enforceable rights thereunder
against Czar. By way of comparison, such evidence of intent was found by the
Delaware Supreme Court in Oliver B. Cannon & Son, Inc. v. Dorr-Oliver, Inc., where the
court found the owner was a third-party beneficiary of a subcontract that contained
indemnification and warranty provisions directly conveying benefits from the
subcontractor to the owner.321 Here, in contrast, the liability and indemnification
provisions in “CZAR ENGINEER, L.C.C. CONTRACT PROVISIONS,” which DSU does
not dispute is incorporated by reference in Czar’s contract with TCI, speaks only to
Czar’s obligations with respect to TCI.
Consequently, because the court determines DSU is not an intended third-party
beneficiary to the TCI-Czar Subcontract, Czar’s motion to for summary judgment on
DSU’s breach of contract claim is granted.
DSU’s Count III negligence claim alleges “Czar . . . provided . . . engineering and
design information on an ongoing basis throughout the instant project, and answered
questions posed in connection with that information. The engineering and design
information and recommendations provided by [Czar] was not incidental to [its] overall
engagement in this case” upon which DSU relied and was damaged, “including but not
320

Cf. William M. Young Co. v. Bacon, C.A. No. 89L-JA2, 1991 WL 89817, at *4
(Del. Super. May 1, 1991) (“Young argues that Pierce holds that a third-party
beneficiary status will exist unless the parties have negated same in the language of the
contract. Young's position is incorrect.”).
321
See Cannon, 336 A.2d at 215-16.
76

limited to damages to the building structure and property other than the panel wall
itself.”322
Czar contends DSU’s attempt to put forth a theory of recovery based on an
independent negligence or negligent misrepresentation claim cannot be sustained
because the economic loss doctrine bars any tort claim unless DSU can show facts
sufficient to allow recovery under one of the exceptions allowed by Delaware case
law.323 Czar asserts DSU cannot make that showing.324
The economic loss doctrine prohibits a party who has suffered only economic
loss from maintaining a tort claim: rather it must sue in contract. 325
Czar contends DSU’s allegation it has suffered “damages to the building
structure and property other than the panel wall system itself” is not supported by the
evidence.326 According to Czar, DSU’s corporate designee testified he agrees there
have been no resulting effects from the panels’ condition “other than it doesn’t look
good.”327 Czar argues there are no allegations of personal injury, and, there is no

322

D.I. 180-2 ¶¶ 64-69.
D.I. 216 at 8.
324
Id.
325
Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992) (“The economic
loss doctrine is a judicially created doctrine that prohibits recovery in tort where a
product has damaged only itself (i.e., has not caused personal injury or damage to
other property) and, the only losses suffered are economic in nature.”) (footnote
omitted); see also Noramco (Delaware), Inc. v. Carew Assoc., Inc., C.A. No. 85C-MY54, 1990 WL 251572, at *3 (Del. Super. Nov. 29, 1990) (“When damages consist solely
of a financial nature and there is no personal injury or other property damage, the
economic loss doctrine will apply and a claim under a contract or warranty theory may
lie as opposed to a claim of negligence, i.e., a tort liability claim.”).
326
D.I. 216 at 8 (quoting D.I. 180-2 ¶ 69).
327
Id. (quoting D.I. 243-13 at 102:13-19).
323

77

evidence of “other” damage based on DSU’s corporate designee’s testimony that the
building is being used for its intended purpose, no equipment has been damaged, and
he was not aware of any water intrusion.328 Czar insists, therefore, the economic loss
doctrine precludes all tort claims, absent an exception to that doctrine. 329
“Delaware has recognized an exception to the economic loss doctrine with the
adoption of § 552 of the Restatement (Second) of Torts.”330 The Restatement provides:
(1) One who, in the course of his business, profession or employment, or
in any other transaction in which he has a pecuniary interest, supplies
false information for the guidance of others in their business transactions,
is subject to liability for pecuniary loss caused to them by their justifiable
reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
(2) [t]he liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose
benefit and guidance he intends to supply it; and
(b) through reliance upon it in a transaction that he inten ds the
information to influence or knows that the recipient so intends or in
a substantially similar transaction.331
“[F]or a plaintiff to maintain a claim under § 552 in Delaware, two elements must
be present: (1) ‘the defendant supplied the information to the plaintiff for use in
business transactions with third parties’ and that (2) ‘the defendant is in the business of

328

Id.
Id.
330
Delaware Art Museum v. Ann Beha Architects, C.A. No. 06-481-GMS, 2007
WL 2601472, * 2 (D. Del. Sept. 11, 2007) (citing Guardian Constr. Co. v. Tetra Tech
Richardson, Inc., 583 A.2d 1378, 1386 (Del. Super. 1990)).
331
Restatement (Second) of Torts § 552 (emphasis added).
329

78

supplying information.’”332
Czar argues that because DSU does not allege other than economic damages,
Czar would have to fall within the § 552 exception to the economic loss doctrine for it to
be potentially liable, but DSU cannot show either element applies.333
Czar contends the first exception does not apply because DSU does not allege,
and cannot show, that the information Czar supplied by way of engineering and
designing the connections was relied upon by DSU to pursue a business transaction
with any other party.334 By the time Czar was engaged by TCI, in March 2014,335 DSU
had already entered into its contracts with R+B, W-T, and TCI.336 Czar also states that
prior to the TCI-Czar Subcontract, TCI had already entered into its agreements with
PFF and Ashford.337 Czar was the last of the parties to be brought onto the project in
March 2014, thus demonstrating this element is not met.338 As support, Czar cites Figg
Bridge Engineers, Inc., where the court dismissed a similar § 552 claim by the

332

Delaware Art Museum, 2007 WL 2601472, at *2 (quoting Christiana Marine
Servs. Corp. v. Texaco Fuel and Marine Mktg. Inc., C.A. No. 98C–02–217WCC, 2002
WL 1335360, at *6 (Del. Super. June 13, 2002) and citing Millsboro Fire Co. v. Constr.
Mgmt. Serv., C.A. No. 05C-06, 2006 WL1867705, at *2 (Del. Super. June 7, 2006));
see also State Dep't of Transp. v. Figg Bridge Engineers, Inc. , C.A. No. S11C-01-031
RFS, 2011 WL 5593163, at *5 (Del. Super. Nov. 9, 2011).
333
D.I. 216 at 9.
334
Id.
335
D.I. 195, Stip. Fact, ¶ 20.
336
Id., Stip. Facts, ¶ 7 (R+B, Jan. 20, 2012), ¶ 12 (W -T, Jan. 12, 2012), ¶ 14
(TCI, Dec. 27, 2013).
337
D.I. 216 at 10; see D.I. 195, Stip. Facts, ¶ 16 (“On or about January 15, 2014,
Thomas Co. made its initial submission of PFF’s Product Data to Whiting-Turner for
review.” (See Stip. Ex. 33.)), ¶ 18 (“R+B reviewed the PFF Product Data and returned it
to Whiting-Turner on January 23, 2014.” (See Stip. Ex. 34)).
338
D.I. 216 at 10.
79

Delaware Department of Transportation (“DelDOT”) against an engineering firm for the
same reason: “[i]t cannot be said that DelDOT relied on the reports to pursue a
business transactions with [the general contractor] because the DelDOT[‘s contract with
the general contractor] was executed long before [the engineering firm’s] reports were
prepared.”339 Thus, Czar asserts DSU could not have relied on information it supplied
in pursuit of business transactions with the other defendants because those
transactions occurred prior to Czar providing the information at issue.340 Demonstration
that the first § 552 element is not met, alone, is enough to grant Czar’s motion for
summary judgment on the negligence claim.341
Czar also contends the second element, being “in the business of supplying
information,” is not met because, for Czar to fall within this exception, it must have been
a “pure information provider.”342 Under Delaware law, architects and engineers who
design particular components of a project are not pure information providers and,
therefore, do not fall within the second element of the § 552 exception to the economic
loss doctrine.343
339

D.I. 216 at 10 (quoting Figg Bridge Engineers, 2011 WL 5593163, at *5).
Id.
341
See Figg Bridge Engineers, 2011 WL 5593163, at *5 (finding the first element
not met, “whether [the engineering firm] is a pure information provider is not reached”).
342
D.I. 216 at 10 (citing Delaware Art Museum, 2007 WL2601472, at *2; RLI Ins.
Co. v. Indian River School Dist., 556 F. Supp. 2d 356, 361-2 (D. Del. 2008); Millsboro
Fire Co., 2006 WL 1867705, at *2; Christiana Marine Servs. Corp., 2002 WL 1335360,
at *5; Riverbend Cmty., LLC v. Green Stone Eng'g, LLC, C.A. No. N10C-07-042 MMJ,
2012 WL 1409013 (Del. Super. Apr. 4, 2012) aff'd, 55 A.3d 330 (Del. 2012)).
343
See, e.g., Millsboro, 2006 WL 1867705, at *1 (finding defendant engineer,
responsible for designing the “heating, ventilation and air conditioning (‘HVAC’), as well
as the electrical and plumbing systems on the Project” to be outside of § 552);
Delaware Art Museum, 2007 WL 2601472, at *4 (dismissing the plaintiff’s negligence
340

80

Czar contends there is no dispute that it provided engineering and design for the
connections of the Panel Wall System to the main building structure as part of the
overall Project and that all parties have testified and will acknowledge at trial that Czar
designed a component part of the Project.344
Based on Czar’s role in the Project, and the authority it cites, Czar urges the
court to determine the second § 552 element is not met because Czar is not a pure
information provider and, therefore any potential tort claims against it by DSU are
barred by the economic loss doctrine.345 The court agrees that Czar was not a pure
information provider and is also entitled to summary judgment on DSU’s Count III
negligence claim.
Additionally, DSU did not respond to Czar’s arguments regarding its Count III
negligence claim.
“[W]here a party responds to a dispositive motion, but only addresses some
subset of the arguments that are the subject of the motion, courts have consistently

misrepresentation claim based on the engineer defendant’s design of parts of the
project did not meet the § 552 information provider exception to the economic loss
doctrine). This court’s opinion in Kuhn Const. Co. v. Ocean & Coastal Consultants,
Inc. relied on Delaware state cases when it applied the economic loss doctrine and
dismissed negligence/negligent misrepresentation claims by a builder against an
engineer, stating “the current weight of authority suggests that the exception does not
apply; the provision of plans and drawings in connection with a construction project is
considered to be information that is incidental to the sale of a finished, tangible
product.” 844 F. Supp. 2d 519, 529 (D. Del. 2012) (citing Christiana Marine, 2002 WL
1335360, at *7 (adopting Tolan and Son, Inc. v. KLLM Architects, Inc., 719 N.E.2d 288,
296 (Ill. 1999)); Millsboro, 2006 WL 1867705, at *3)).
344
D.I. 216 at 11.
345
Id.
81

held that the claims that are not defended are deemed abandoned.” 346
DSU was on notice of Czar’s arguments that there are no genuine issues of
material fact precluding summary judgment in its favor on Count III. DSU chose to
challenge only a subset of Czar’s arguments, its status as third-party beneficiary to the
TCI-Czar Subcontract. Based on DSU’s failure to respond, and the evidence and
argument Czar provides in support of its motion on DSU’s negligence claim, the court
determines that claim is abandoned and Czar’s motion for summary judgment on Count
III is granted.
Lastly, DSU alleges separate claims of breach of contract and unjust enrichment
against Czar.347 Czar argues that DSU’s unjust enrichment claim in Count IV fails
because such a claim may not be asserted along with a contract claim.348
In Wood v. Coastal States Gas Corp., the Delaware Supreme Court stated that
“[b]ecause the contract is the measure of plaintiffs’ right, there can be no recovery
346

Baldonado v. Avrinmeritor, Inc., C.A. No. 13-833-SLR-CJB, 2014 W L
2116112, at *7 (D. Del. May 20, 2014) (citing cases), report and recommendation
adopted, C.A. No. 13-833-SLR/CJB, 2014 W L 2621119 (D. Del. June 10, 2014). The
Baldonado court contrasted cases, as here, where a party responded to a dispositive
motion and addressed only a subset of the movant’s arguments from cases where a
party fails to respond in any way to a dispositive motion. Id. at *7 n.6 (citation omitted).
The court reiterated that where a party responds to only a subset of the movant’s
arguments, “the unaddressed claim is deemed abandoned.” id.; see also Blakeman v.
Freedom Rides, Inc., C.A. No. 12-416-LPS-CJB, 2013 W L 3503165, at *13 (D. Del. July
10, 2013) (same); Butorin v. Blount, C.A. No. 15-283-LPS, 2018 W L 4700217, at *1 n.1
(D. Del. Sept. 30, 2018) (determining that by responding to arguments with respect to
one claim in a motion to dismiss all claims, the plaintiff abandoned its other claims);
Seals v. City of Lancaster, 553 F. Supp. 2d 427, 432 (E.D. Pa. 2008) (“Plaintif f's failure
to mention these issues in her summary judgment response constitutes abandonment
of those claims.”).
347
D.I. 180-2 (Counts I and IV).
348
D.I. 216 at 11.
82

under an unjust enrichment theory independent of it.”349 Following Wood, the Delaware
Court of Chancery explained in Kuroda v. SPJS Holdings, L.L.C.:
Unjust enrichment is “the unjust retention of a benefit to the loss of
another, or the retention of money or property of another against the
fundamental principles of justice or equity and good conscience.” A claim
for unjust enrichment is not available if there is a contract that governs the
relationship between parties that gives rise to the unjust enrichment claim.
In other words, if “the contract is the measure of [the plaintiff's] right, there
can be no recovery under an unjust enrichment theory independent of it.”
Thus, “[w]hen the complaint alleges an express, enforceable contract that
controls the parties' relationship . . . a claim for unjust enrichment will be
dismissed.”350
DSU alleges, albeit unsuccessfully on a third-party beneficiary theory, the
existence of a contract and seeks to enforce that contract through Count I.351 Czar
maintains that even if DSU were to argue that the unjust enrichment claim should not
be dismissed as to Czar because DSU is not party to the TCI-Czar Subcontract, or vice
versa, that argument would fail “because unjust enrichment cannot be used to
circumvent basic contract principles recognizing that a person not a party to a contract
cannot be held liable to it.” 352
DSU did not respond to Czar’s arguments regarding Count IV.
As with Count III, DSU was on notice of Czar’s arguments that there are no
genuine issues of material fact precluding summary judgment in its favor on its unjust
349

401 A.2d 932, 942 (Del. 1979).
971 A.2d 872, 891 (Del. Ch. 2009) (citations om itted); see also Doberstein v.
G-P Indus., Inc., C.A. No. 9995-VCP, 2015 W L 6606484, at *6 (Del. Ch. Oct. 30, 2015)
(dismissing the plaintiff’s unjust enrichment claim because she could not identify “any
factual basis for her unjust enrichment claim independent of the allegations relating to
her breach of contract claim”).
351
D.I. 216 at 12.
352
D.I. 216 at 12 (quoting Kuroda, 971 A.2d at 891-92 (citation omitted)).
350

83

enrichment claim. Based on Czar’s arguments supporting its motion on that claim, and
DSU’s failure to respond, the court determines that claim is abandoned and Czar’s
motion for summary judgment on Count IV is granted.353
Czar next argues there can be no viable contribution claims where there is no
underlying tort.354 Delaware’s Uniform Contribution Among Tortfeasors Law, 10 Del. C.
§ 6301 et seq. (“UCATL”) requires the establishment of joint tortfeasor status.355 As
discussed above, the court has dismissed DSU’s tort claims against Czar. TCI and
DSU have voluntarily dismissed all of the claims each asserted against each other. 356
As discussed below, the court dismisses DSU’s tort claims against PFF. DSU does not
assert tort claims against R+B or W-T. As a result, there are no remaining codefendants that could establish joint tortfeasor status with Czar, and none have
353

In its opening brief, Czar argues that even if DSU is a third-party beneficiary of
the TCI-CZAR Subcontract, DSU is subject to the same liability limitations in that
contract. Id. at 7-8 (citing NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC, 922
A.2d 417, 431 (Del. Ch. 2007)). By not responding to that argument, Czar argued DSU
conceded that point. D.I. 241 at 2. Because the court determ ines DSU is not a thirdparty beneficiary of the TCI-Czar Subcontract, the issue with respect to DSU is moot.
The court discusses Czar’s limitation of liability arguments in connection with TCI, and
R+B’s arguments on the issue, below.
354
D.I. 216 at 12.
355
See Builders & Managers, Inc. v. Dryvit Sys., Inc., No. Civ. A. 00C11111JEB,
2004 WL 304357, at *2 (Del. Super. Feb. 13, 2004) (“T he right to contribution is
triggered when it is appropriate for liability to be apportioned among codefendants. In
Delaware, contribution is governed by the UCATL which provides the parameters for
determining when contribution is appropriate and how it is to be decided. The inherent
requirement is that the parties are joint tortfeasors who share a ‘common liability.’”).
(citations omitted); New Zealand Kiwifruit Mktg. Bd. v. City of Wilmington, 825 F. Supp.
1180, 1186 (D. Del. 1993) (“Indispensable to a joint tortf easor relationship is a ‘common
liability’ either ‘joint’ or ‘several’ that two or more parties have to the person injured.
Without this dual liability . . . no right of contribution can exist.”) (omission in original)
(citation omitted).
356
See D.I. 257.
84

responded to its motion on the contribution cross-claims. Thus, Czar’s motion is
granted as to contribution cross-claims asserted against it.
Other than TCI, no defendant has pled the existence of a contract with Czar
whereby Czar is obligated to indemnify any defendant. Czar’s opening brief states all
claims for indemnification by all defendants, except TCI, fail because there is no
contract or common law right of indemnification and, therefore, none can claim a right
of contractual indemnity against Czar.357
R+B, the remaining co-defendant generally alleging a cross-claim for
indemnification against all other co-defendants,358 does not respond to Czar’s motion on
that claim, and has not alleged a right of contractual indemnity against Czar. Thus,
Czar’s motion is granted as to R+B’s indemnification cross-claim.
Finally, Czar moves for summary judgment in its favor that Czar’s liability, if any,
is limited to $ 50,000. 359 Czar contends its clear and unambiguous contractual
obligation to indemnify TCI is entirely found in ¶ 15 of the TCI-Czar Subcontract, and is
limited to the $50,000 cap specified in ¶ 13.360
TCI’s response to Czar’s motion on this issue is limited to arguing that Czar’s
limitation of liability provision is unenforceable under 6 Del. C. § 2704, which TCI states
prohibits the enforcement of an agreement, relative to the construction of a building,
357

D.I. 216 at 14. After filing its opening brief, Czar advised the court that it
erroneously stated that all defendants had filed cross claims for indemnification against
Czar, but that PFF and W-T did not file such claims and it was withdrawing any
arguments in that section as to PFF and W -T. D.I. 220 at 1.
358
See D.I. 77.
359
See D.I. 216 at 14-20.
360
Id. at 17.
85

“purporting” to indemnify or hold a contracting party harmless, as against public
policy.361 TCI also affirmatively moves for summary judgment in its favor restating its
§ 2704 argument, as well as arguing the limitation of liability clause is unenforceable
because it is ambiguous.362 In R+B’s answering brief in opposition to the affirmative
motions for summary of DSU, TCI, and Czar, R+B joined TCI’s opening-brief arguments
on the limitation of liability issue.363 R+B’s brief does not substantively expand on TCI’s
§ 2704 unenforceability and ambiguity arguments.364 R+B additionally argues Czar’s
limitation of liability clause is unenforceable because the possible damages flowing
from the breach of the TCI-Czar Subcontract were easily known to Czar at the time of
the contracting, and that the limitation prejudices DSU’s rights in contravention of the
General Conditions of the DSU-TCI Contract.365 The court first addresses Czar and
TCI’s cross-motions, followed by R+B’s two additional arguments against Czar’s motion
on this issue.
“The proper construction of any contract . . . is purely a question of law.”366
TCI asserts Czar’s limitation of liability provision is unenforceable under 6 Del. C.
§ 2704,367 which provides, in relevant part:
(a) A covenant, promise, agreement or understanding in, or in connection
361

See D.I. 224 at 1, 3-8.
See D.I. 217; D.I. 218 at 5-6, 17-19.
363
D.I. 225 at 10.
364
Id. at 11-12, 14. The court’s discussion of these points in the context of TCI’s
arguments, therefore, also resolves R+B’s arguments.
365
D.I. 225 at 10-11, 14.
366
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192,
1195 (Del. 1992) (citation omitted).
367
D.I. 218 at 17; D.I. 224 at 3.
362

86

with or collateral to, a contract or agreement . . . relative to the
construction, alteration, repair or maintenance . . . of a . . . building . . .
purporting to indemnify or hold harmless the promisee or indemnitee . . .
for damages arising from liability for bodily injury or death to persons or
damage to property caused partially or solely by, or resulting partially or
solely from, or arising partially or solely out of the negligence of such
promisee or indemnitee or others than the promisor or indemnitor, or its
subcontractors, agents, servants or employees, is against public policy
and is void and unenforceable, even where such covenant, promise,
agreement or understanding is crystal clear and unambiguous in
obligating the promisor or indemnitor to indemnify or hold harmless the
promisee or indemnitee from liability resulting from such promisee's or
indemnitee's own negligence.368
In J.S. Alberici Construction Co. v. Mid-West Conveyor Company, Inc., the
Delaware Supreme Court stated “[a]lthough section 2704(a) does not indicate the
specific purpose underlying the policy expressed, it does express in broad terms the
‘promisee,’ ‘indemnitee’ and ‘others’ as a class prohibited from contracting away liability
for their own negligence.”369 The court held “Section 2704(a) is clear on its face: a
contractual provision requiring one party to indemnify another party for the second
party's own negligence, whether sole or partial, ‘is against public policy and is void and
unenforceable.’”370 Here, by contrast, the limitation of liability provision does not require
TCI to indemnify Czar (the second party) from Czar’s (the second party’s) own liability:
it places a ceiling on Czar’s liability to TCI for Czar’s liability, i.e., Czar is responsible for
368

6 Del. C. § 2704 (emphasis added). The statute recites three exceptions:
any obligation owed to the Department of Transportation pursuant to a contract
awarded under Title 17 or Chapter 69 of Title 29; policies of insurance issued by
authorized insurance companies: and, indemnity obligations in a partnership agreement
of a partnership (whether general or limited), limited liability company agreement, trust
agreement, governing instrument of a trust, certificate of incorporation or bylaw. 6 Del.
C. §§ 2704(a), (b), (c).
369
750 A.2d 518, 521 (Del. 2013).
370
Id.
87

its liability up to that ceiling.
TCI contends Delaware State Legislature’s inclusion of the word “purporting”
within § 2704 casts a broad net and is intended to encom pass all conceivable attempts
to require one party to indemnify another within the context of a construction contract. 371
The court does not view Czar’s limitation of liability clause as one of those attempts
swept into the net of § 2704 unenforceability. Pursuant to § 2704, a provision
“purporting to indemnify or hold harmless the promisee or indemnitee . . . for [certain]
damages . . . is against public policy and is void and unenforceable.” At issue here, by
contrast, is a limitation of liability clause, not a provision attempting to “indemnify or hold
harmless” Czar for its actions.
The distinction between the two types of clauses made by the Third Circuit in
Valhal Corp. v. Sullivan Associates, Inc. 372 is instructive. In an action governed by
Pennsylvania law the court explained, “there are differences between a contract which
insulates a party from liability and one which merely places a limit on that liability. The
difference between the two clauses ‘is . . . a real one.’” 373 There, the court
held a limitation of liability clause in an architect’s contract was enforceable and not in
violation of Pennsylvania’s Anti-Indemnity Act:
The terms of the statute pertain only to indemnity and hold harmless
provisions. We have already discussed the very real differences between
such clauses and the one in the contract bef ore us. Those differences
preclude an assumption that a statute expressing a prohibition against
indemnity and hold harmless provisions announces a public policy against
371

D.I. 218 at 17.
44 F.3d 195, 203-07 (3d Cir. 1995).
373
Valhal, 44 F.3d at 202 (citations omitted).
372

88

something as distinct and accepted as limitation of liability clauses.374
The Pennsylvania statute, 68 Pa. Stat. Ann. § 491 (Purdons 1994), as q uoted in
Valhal, provides:
Every covenant, agreement or understanding . . . in connection with any
contract or agreement made and entered into by owners, contractors,
subcontractors or suppliers whereby an architect . . . or his[/her] agents
. . . shall be indemnified or held harmless for damages . . . arising out of:
(1) the preparation or approval by an architect . . . or his[/her] agents . . .
of . . . opinions, reports, . . . or specifications, or (2) the giving or the
failure to give directions or instructions by the architect . . . Or his[/her]
agents . . . Shall be void as against public policy and wholly
unenforceable.375
TCI states, but does not explain how, the Pennsylvania “statute’s scope is much
narrower than § 2704’s” in dismissing the relevance of Valhal as it relates to this court’s
analysis.376 The emphasis added by the Valhal court demonstrates that court’s analysis
was focused on the distinction between indemnification or hold harmless provisions
versus limitation of liability provisions, a distinction the court considers applicable to
6 Del. C. § 2704, as both the Delaware and Pennsylvania statutes prohibit agreement
to indemnify or holding harmless.377
In Daimlerchrysler Corp. v. Pennsylvania Nat. Mut. Cas. Ins. Co., the Superior

374

Id. at 205.
Id. at 204 (emphasis added by Valhal court).
376
D.I. 224 at 6.
377
Compare the Delaware Supreme Court’s decision in J.S. Alberici. There, a
subcontracting agreement contained a clause to “indemnify, hold harmless and defend”
and a Kansas choice of law provision, where the clause would be enforced. The court
refused to enforce the choice of law agreement because enforcement of an indemnity
agreement completely shielding the party from liability for its own negligent actions
pursuant to Kansas law “would be clearly repugnant to the public policy of Delaware.”
J.S. Alberici, 750 A.2d at 521.
375

89

Court of Delaware recognized the public policy purpose behind the Act as prohibiting
“agreement[s] purporting to hold an owner or general contractor free from liability for its
own negligence” because they “undermine[] the strong public policy of placing and
keeping responsibility for maintaining a safe workplace on those parties
[responsible].”378
In RHA Construction, Inc. v. Scott Engineering, Inc., the Superior Court of
Delaware considered a contract for engineering services and construction drawings
regarding property RHA intended to develop.379 After the project did not go forward,
RHA filed suit and defendants moved for summary judgment that, inter alia, any award
of damages arising from the litigation should be limited to fees paid in accordance with
a limitation of liability clause in defendants’ contract. 380 Although § 2704 was not at
issue in that case, the RHA court noted “[l]imitation of liability clauses that relieve a
party of liability for its own negligence are generally disfavored under Delaware law,” but
held, based on the facts of that case, limiting the plaintiff’s recovery to fees paid would
not be unconscionable. 381
Although neither Daimlerchrysler nor RHA directly address the current issue, the
court concludes that § 2704 does not prohibit enf orcement of a limitation of liability

378

No. CIV.A. 01C-04-036, 2003 W L 1903766, at *2-3 (Del. Super. Mar. 17,
2003) (emphasis added) (discussing the contrast between a contractual obligation to
procure insurance with the indemnification prohibition of § 2704 in determining whether
there was an enforceable action on an insurance policy in face of the statutory
prohibition).
379
C.A. N11C-03-013 JRJ CCLD, 2013 WL 3884937 (Del. Super. July 24, 2013).
380
Id. at *7.
381
Id. at *8 (citations omitted).
90

clause. This conclusion is based on the distinction between indemnity and hold
harmless clauses versus limitation of liability clauses, the prior enforcement of a similar
limitation of liability clause in Delaware, and the purpose of the § 2704 prohibition of
indemnity and hold harmless provisions to promote work place safety by incentivizing
the parties to perform their work safely.
The court also rejects TCI’s argument that effect of enforcing Czar’s limitation of
liability clause results in TCI indemnifying Czar for amounts owed in excess of the
limitation in contravention of § 2704's indemnification prohibition. 382 Here, setting a
ceiling to Czar’s potential liability is not equivalent to TCI indemnifying Czar.383
Although the amount of Czar’s liability is capped, it is still potentially liable for
substantial damages for its actions.384
382

D.I. 235 at 2-3.
See, e.g., Posttape Assocs. v. Eastman Kodak Co., 537 F.2d 751, 755 (3d
Cir. 1976) (“Though it is possible that an agreement setting damages at a nominal level
may have the practical effect of avoiding almost all culpability for wrongful action, the
difference between the two concepts is nevertheless a real one.”) (applying
Pennsylvania law) (citation omitted); Thrash Commercial Contractors, Inc. v. Terracon
Consultants, Inc., 889 F. Supp. 2d 868, 575-76 (S.D. Miss. 2012) (“Courts considering
the issue have consistently held that a limitation of liability will be found unenforceable if
it establishes a limitation of liability that “is so minimal compared to [a party's] expected
compensation as to negate or drastically minimize [such party's] concern for the
consequences of a breach of its contractual obligations.” (alteration in original) (quoting
Valhal, 44 F.3d at 204)).
384
TCI suggests a holding that § 2704 does not bar enforcement of Czar’s
limitation of liability will impermissibly amend, change, expand, or alter § 2704 by
adding an exception to its application beyond the three specifically set forth in the
statute. D.I. 224 at 7-8. An exception is not created by the court’s determination: the
statute simply does not bar enforcement of a valid limitation of liability clause. TCI cites
City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271 (Ak. 1994), where the
Alaska Supreme Court considered the enforceability of a $50,000 limitation of liability
provision in a contract between the city and an engineering firm. The engineer was
required to design a facility for the EPA in connection with a sewage treatment system.
383

91

Thus the court denies TCI’s motion for summary judgment that Czar’s limitation
of liability clause is unenforceable under § 2704, and grants Czar summary on that
issue.
TCI also argues Czar’s limitation of liability clause is unenforceable because it is
ambiguous.385
“Clear and unambiguous [contract] language . . . should be given its ordinary and
usual meaning. Absent some ambiguity, Delaware courts will not destroy or twist policy
language under the guise of construing it.”386 “[A] contract is ambiguous only when the
provisions in controversy are reasonably or fairly susceptible of different interpretations
or may have two or more different meanings.”387 “If a contract is ambiguous, we will
apply the doctrine of contra proferentem against the drafting party and interpret the
contract in favor of the non-drafting party. . . . The determination of ambiguity lies

Id. at 1273-1274. The Dillingham court examined Alaska’s ant-indemnification statute’s
legislative history, and concluded the legislature would have included an exception
permitting the enforcement of a limitation of liability provision had it so desired and
found the provision void. Id. at 1276-78. Czar points out the Supreme Court of Arizona
rejected the same public policy argument in 1800 Ocotillo, LLC v. WLB Grp., Inc., 196
P.3d 222, 226 (2008) where it stated the Dillingham decision “was largely premised
upon the Alaska legislature's express rejection of a proposal to exempt liability-limitation
provisions when it enacted its anti-indemnification statute.” (citing Dillingham, 873 P.2d
at 1276–78) (emphasis added). This court believes, as did the Arizona court, that
“[r]ather than presume that our legislature implicitly intended to proscribe
liability-limitation provisions, we instead believe the legislature specified those
contractual terms it meant to declare unenforceable.” 1800 Ocotillo, LLC, 196 P.3d at
226.
385
D.I. 218 at 18-19; D.I. 235 at 3-4.
386
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192,
1195 (Del. 1992) (citations omitted).
387
Rhone-Poulenc, 616 A.2d at 1192, 1196 (Del. 1992) (citations omitted).
92

within the sole province of the court.”388 “[W]here reasonable minds could differ as to
the contract's meaning, a factual dispute results and the fact-finder must consider
admissible extrinsic evidence. In those cases, summary judgment is improper.”389
TCI contends the terms of Czar’s limitation appear in two paragraphs, with
unrelated intervening clauses which, when read together, are internally inconsistent,
irreconcilable, and subject to more than one reasonable interpretation. 390 Paragraph 4
of Czar’s proposal letter states:
Czar Engineering's work will be limited to work as described herein only.
No other structure will be reviewed and we defer to the building contract
documents for all other design information. If the Client, Owner,
Contractor, or other interested party are aware of deficiencies in the
balance of the structure, it is incumbent upon them to notify Czar
Engineering, in writing, and additional services would follow under
separate contract. Otherwise, Czar Engineering and/or Lamont H. Czar,
P.E. cannot and will not accept liability for deficiencies in the balance of
the structure.391
TCI contends this paragraph would permit Czar’s liability to TCI to be terminated by the
failure of nonparties to notify Czar of deficiencies “in the balance of the structure.” TCI
states it is unclear whether Czar’s liability would be limited to $50,000 or otherwise
altogether excused if notice was not given to Czar, and that the words “balance of the
structure” being undefined only adds to the confusion.392
Czar argues the italicized first sentence of paragraph 4, omitted from TCI’s brief,
388

Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1160 (Del. 2010).
GMG Capital Investments, LLC v. Athenian Venture Partners I, L.P. , 36 A.3d
776, 783 (Del. 2012) (citations and footnotes omitted).
390
D.I. 218 at 18.
391
D.I. 243-1, Stip. Ex. 2, March 6, 2014 Czar letter submitting proposal to TCI at
3, ¶ 4 (emphasis added). TCI did not include the italicized first sentence in its brief.
392
D.I. 218 at 18.
389

93

elucidates the intent of the paragraph.393 According to Czar, it was contracted by TCI
to design connections only for the exterior SIP panels, and a different engineering firm
was separately contracted by DSU to engineer every other aspect of the building.394
Czar maintains that paragraph indicates it will rely on the work performed by DSU’s
other engineers and is not liable for errors made by that other engineer in the rest of the
building, which it contends is merely stating the obvious.395 Czar acknowledges,
however, that “[w]hat may not be obvious . . . is CZAR’s statement here that if these
errors become known to anyone along the way, CZAR will seek additional service fees
if its work is impacted.”396 Czar insists this provision is not a limitation of liability clause:
it is a statement that there is a division of liability between parties to a construction
project, where each is responsible for their own conduct.397
The court finds reasonable minds could differ as to the meaning of this language.
Czar acknowledges the lack of obviousness in the language, and the statement that
Czar “will not accept liability for deficiencies in the balance of the structure” makes it
uncertain whether this provision relates to, or impacts, its limitation of liability provision
in paragraph 13 of its contract with TCI. These questions must be answered by the
finder-of fact. Thus, summary judgment is denied.
Paragraph 13 of Czar’s broadly states its liability to TCI for loss caused by Czar’s
conduct:
393

D.I. 230 at 4.
Id. at 9.
395
Id.
396
Id. (emphasis added).
397
Id.
394

94

shall not exceed six times the total fees paid to the consultant . . . , or
$50,000, whichever is greater. Furthermore, consultant and client agree
that the consultant’s liability shall not exceed the available amount of the
professional liability insurance coverage for the sub-consultant at the tim e
that the claim is resolved. . . .398
TCI maintains the italicized language makes this paragraph ambiguous because
it suggests the possibility that “the available amount of professional liability insurance”
may decrease, or render null, its previously stated $50,000 of insurance coverage.399
Czar argues paragraph 13 is not ambiguous because that language only creates
a window for the limits, i.e., (1) the greater of 6X fees paid or $50,000.00; and (2) the
available amount of the professional liability insurance coverage at the time that the
claim is resolved.400 Czar then states, without citation to the record, the purported
amounts of its applicable insurance policy and speculates that its coverage would not
be exhausted by its legal fees and potential liability, which could be attested to if
necessary.401
The court again finds that reasonable minds could differ as to the impact of
Czar’s available amount of insurance coverage, and Czar’s arguments based on
extrinsic evidence, and/or attestation thereto, does not allow the court to resolve the
ambiguity on summary judgment.402
398

D.I. 243-1, Stip. Ex. 2, ¶ 13 (emphasis added).
D.I. 218 at 19; D.I. 235 at 3-4.
400
D.I. 230 at 9.
401
Id. at 9-10.
402
See, e.g., Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228,
1229, 1232-33 (Del. 1997) (reversing a grant of summary judgment where the court
held an indemnification provision to be ambiguous, thus raising factual issues requiring
consideration of extrinsic evidence to determine the intended meaning of the provision
in light of the expectations of the contracting parties).
399

95

Thus, the court denies TCI’s motion for summary judgment that Czar’s limitation
of liability provision is void under § 2703, grants Czar’s motion on the § 2704 issue, and
denies Czar’s motion for summary judgment that the its limitation of liability in the TCICzar Subcontract is unambiguous. Because that issue must be resolved by the finder
of fact, the court denies TCI’s motion for summary judgment that Czar’s limitation of
liability under the contract is void, or unenforceable.
R+B’s additional arguments against Czar’s limitation of liability are also
unavailing. Delaware courts have evaluated the enforceability of liability limitation
clauses using the same criteria for assessing enforceability of a liquidated damages
clause.403 Under this analysis, a limitation clause “will not be enforced if possible
damages are easy to ascertain or if the terms of the contract are found to be
unreasonable.” 404
Here, R+B argues the "possible damages" were easily known at the time of
contracting based on TCI’s original contract price of $749K.405 However, R+B then
hypothetically contends if Czar's error were discovered at or shortly after the panels
were installed, it was easily foreseeable that the cost to remove, replace and reinstall
the panels plus any additional remedial actions would have exceeded TCI's original

403

See, e.g., Donegal Mut. Ins. Co. v. Tri-Plex Sec. Alarm Sys., 622 A.2d 1086,
1089 (Del. Super. 1992); Rob-Win, Inc. v. Lydia Sec. Monitoring Inc., No. 04C-11-276,
2007 WL 3360036, at *5 (Del. Super. Apr. 30, 2007) (citing Donegal, 622 A.2d at 1089).
404
RHA Constr., Inc. v. Scott Eng’g, Inc., C.A. N11C-03-013 JRJ CCLD, 2013
Del. Super. LEXIS 301 at *28 (Del. Super. July 24, 2013) (citing Rob-Win, 2017 WL
3360036, at *6).
405
D.I. 225 at 11 (citing D.I. 243-3, Stip. Ex. 139).
96

contract price to acquire and install the panels. 406 Thus, R+B asserts the limitation of
$50,000 was unreasonable when made and, therefore, the purported limitation of
liability is unenforceable.407
The court disagrees on both points. R+B’s own hypothetical admits the possible
damages are not “easy to ascertain.” Damages could be some unknown amount in
excess of TCI’s contract if Czar was somehow entirely liable for all damages because
no damages could be attributed to the actions of any other party. That is an extremely
speculative outcome given the multitude of claims against all defendants by DSU, and
among defendants themselves.408
Separately, R+B’s declaration that the $50,000 limitation of liability is
unreasonable is made without any analysis or support. Per the TCI-Czar PO, the total
fees to be paid Czar were $6,500. 409 The $50,000 liability cap is more than seven times
the contemplated payment for Czar’s services. Because R+B makes no showing that
Czar’s limitation of liability was unreasonable at the time TCI and Czar agreed to the
terms of their contract, the court declines to hold, as a m atter of law, it is
unreasonable. 410
406

Id.
Id.
408
In the case cited by R+B, RHA, the court found it “untenable to assert the
parties would have been able to easily ascertain damages as a result of any alleged
breach at the time of contracting” where, inter alia, the project “involved three
construction or holding companies, real estate agents, lawyers, engineers, [and] the
County government . . . .” RHA, 2013 Del. Super. LEXIS 301, at *28-29.
409
See D.I. 243-1, Stip. Ex. 2.
410
The court notes R+B’s answering brief in opposition to Czar’s motion
concludes with the statement that “Czar’s arguments with regard to limitation of liability
are untenable and should be rejected” and “requests summary judgment on [this]
407

97

Next, R+B urges the court to find Czar’s limitation of liability clause
unenforceable because it somehow prejudices DSU’s rights under DSU’s contract with
TCI,411 an argument not advanced by either DSU or TCI themselves.
R+B cites the requirement in § 5.3 (Subcontractual Relations) of the General
Conditions of the Contract for Construction between DSU and TCI to preserve all such
rights in the subcontracts and not to prejudice the Owner’s rights.412 R+B’s theory is
that § 5.3 governs TCI’s subcontracting with Czar, Czar’ limitation of liability prejudices
DSU’s rights because DSU did not contract for a limitation of liability on the services
TCI was required to provide, and, therefore, there should be no limitation of liability for
TCI’s subcontractors, i.e., Czar.413
The General Terms and Conditions of the DSU-TCI Contract were not
incorporated in the TCI-Czar Subcontract, a contract to which the court has determined
DSU is not a third-party beneficiary. The provision R+B cites is an obligation of TCI to
DSU, a breach of which creates a potential claim by DSU against TCI, not against Czar.
R+B’s argument is rejected.

issue[].” D.I. 225 at 15. R+B’s affirmative motion for summary judgment (D.I. 203)
seeks judgment in its favor on Czar’s cross-claims against R+B. See D.I. 204 at 4, 1617 (addressing Czar’s cross-claims for indemnity and contribution). R+B did not move
for summary judgment on the disputed limitation of liability clause in the TCI-Czar
Subcontract.
411
D.I. 225 at 13.
412
Id. (citing D.I. 243- Stip. Ex. 48, General Conditions, § 5.3 (“. . . Each
subcontract agreement shall preserve and protect the rights of the Owner, Construction
Manager and Architect under the Contract Documents with respect to the Work to be
performed by the Subcontractor so that subcontracting thereof will not prejudice such
rights . . . .”)).
413
Id.
98

The remaining issues from TCI’s affirmative motion is whether the design of the
Panel Wall System was delegated to TCI, and whether the Panel System was
constructible.
TCI asserts the panel design was not delegated to TCI. TCI contends whether it
was responsible for the panel design depends upon whether the court determines
Specification 07435 pertaining to the Wall Panels, is a “performance” specification or a
“design” specification.414
R+B argues TCI’s position that the Panel Design was not delegated to TCI is
based on the erroneous, and disputed, prem ise that the Specification is not a
Performance Specification that delegated design to TCI.415
R+B prepared Specification 07435 - INSULATED METAL WALL PANELS
(Addendum 3, 11/14/2013) for the Panel Wall System.416 R+B used Permatherm as its
basis of design for the panels, and the Specifications listed both Permatherm and PFF
as acceptable panel manufacturers.417 The Specification provided in part at Part I:
General: Construct panel system to provide for expansion and
contraction of component materials without causing buckling, failure of
joint seals, undue stress on fasteners, other detrimental effects to the
panel system or adjacent building systems, or warping of faces of panel
system.418
It further provided in part at Part 1.5, Submittals:
414

D.I. 218 at 9 (citing D.I. 243-1, Stip. Ex. 3). TCI explains the term the term
“performance specification” is synonymous with “delegated design. Id. at 9 n.14.
415
D.I. 225 at 6.
416
D.I. 243-1, Stip. Ex. 3; D.I. 195, Stip. Fact 9 (identifying this as the
“Specifications”).
417
D.I. 195, Stip. Fact. 10.
418
D.I. 243-1, Stip. Ex. 3 at DSU 006176.
99

D. Engineered Drawings and Calculations: For installed products
indicated to comply with certain design loadings, include structural
analysis data and design prepared by an independent third party signed
and sealed by the qualified professional engineer responsible for their
preparation.
1. Panel engineering to be prepared by the following, or another
qualified engineer submitted and approved in accordance with prior
approval process.
a. Paul D. Hatch, PE, PC, [xxxx xxxxxx xxxxx xxxx], Ellijay,
GA 30540. Phone: [xxx-xxx-xxxx]; E-mail:
[xxxxxxxx]@bellsouth.net. 419
On December 27, 2019, DSU entered into a contract with TCI entitled AIA®
Document A132™ – 2009, Standard Form of Agreement Between Owner and
Contractor, Construction Manager as Adviser Edition for the Wall System.420 On
January 17, 2014, TCI advised W-T it had selected PFF as its manufacturer of record
on the Project. 421
TCI and R+B each submit evidence suggesting disagreements as to what the
Specifications require of TCI with respect to its contested Panel W all System design
responsibilities,422 TCI acknowledges “Courts have confronted [the] issue [of whether a
contract provides a performance specification or a design specification], with varying
results as the inquiry is largely fact driven.”423 The court finds this to be a case where
the competing arguments and facts preclude the court holding, as a matter of law, that
the TCI was not delegated design responsibility. Thus, TCI’s motion for summary
419

Id., Stip. Ex. 3 at DSU 00617.
D.I. 243-3, Stip. Ex. 139; D.I. 195, Stip. Fact 14.
421
D.I. 243-1, Stip. Ex. 33.
422
See D.I. 218 at 2-5; D.I. 225 2-4.
423
D.I. 218 at 10 (emphasis added).
420

100

judgment is denied on this issue.
TCI’s also seeks summary judgment that R+B’s Panel Wall System was not
constructible.424 In its opening brief, TCI cites the testimony of DSU’s expert, Dannettel,
for support.425 R+B asserts, to the extent TCI relies on DSU’s expert testimony, TCI
asks the court to weigh and accept expert opinion to resolve the constructability.426
R+B argues that because the court is not permitted to weigh evidence at the summary
judgment stage, TCI’s motion must be denied. 427 In its reply brief, TCI does not directly
counter R+B’s argument; instead it incorporates DSU’s consolidated-answering-brief
argument that expert testimony is not required to establish R+B’s negligence.428 In the
end, TCI’s apparent reversal in first arguing DSU’s expert testimony entitles it to
summary judgment, and then promoting DSU’s argument that the same testimony is
not required to establish R+B’s negligence, does not affect the outcome of its motion.
Because court has determined, above, the constructability issue is one of several that
require expert testimony, and by granting the Motion to Strike that testimony is absent,
TCI’s motion for summary judgment that the Panel Wall System was not constructible is
denied.
TCI moves for summary judgment that DSU’s proposed repairs constitute
economic waste. TCI and DSU dismissed all claims against each other, 429 therefore,

424

D.I. 218 at 5-6.
Id.
426
D.I. 225 at 9.
427
Id.
428
D.I. 235 at 5.
429
See D.I. 257.
425

101

TCI’s motion is denied as moot.
The court concludes this portion of the opinion by addressing the remaining
issues from R+B’s motion for summary judgment, i.e., whether it is entitled to summary
judgment on the cross-claims against it by Czar, TCI, and W-T. R+B argues the
negligence cross-claims must be supported by expert opinion on the standard of
care.430 TCI and W-T do not proffer any expert opinion, and Czar’s expert opinions are
offered only to defend Czar, not fault R+B.431
Czar did not respond to R+B’s motion. Czar’s cross-claims, however, are
premised on it being found liable to DSU, which threat has been removed by the court’s
grant of summary judgment in Czar’s favor on DSU’s claims against it. Moreover, the
court found that there are no joint tortfeasors among Czar and any of its co-defendants.
Therefore, R+B’s motion is granted as to Czar’s negligence claim against R+B.
TCI argues no expert testimony is required to establish R+B’s negligence, citing
the “common knowledge” exception to the general rule that expert testimony is required
to establish the applicable standard of care for professionals.432 The court has already
determined, in its discussion of DSU and R+B’s cross-motions for summary judgment
on DSU’s breach of contract claim, that expert testimony is required maintain a
negligence claim with respect to R+B’s professional obligations here.433 Because TCI
430

D.I. 204 at 16.
D.I. 204 at 17 (citing D.I. 243-4, Stip. Ex. 175 (Czar expert report by Michael
Johannes Paul, P.E., of Larsen & Landis)).
432
D.I. 224 at 8 (citing Seiler v. Levitz Furniture Co., 367 A.2d 999, 1008 (Del.
1976).
433
The case cited by TCI, Dailey v. Purse, C.A. No. 06C-04-015 RFS, 2008 W L
4824075 (Del. Super. Oct. 15, 2008), to suggest the common knowledge exception
431

102

proffers no expert opinion on R+B’s professional standard of care, and how that was
breached, R+B’s motion is granted as to TCI’s negligence claim against R+B.434
The court also notes, TCI’s cross-claims against R+B are premised its liability to
DSU.435 Because TCI and DSU have dismissed all of their claims against each other,
the premise of TCI’s cross-claims cannot occur. Thus, this is an additional reason to
grant R+B’s motion as to TCI’s cross-claims.
W-T alleges cross-claims for contribution, implied in law indemnification, and
implied in contract indemnification. W-T’s cross-claim for contribution fails because
there are no joint tortfeasors from whom W-T could receive contribution. Each of crossclaims is premised on W-T’s liability to DSU.436 The court has dismissed DSU’s only
claim against W-T, breach of contract; thus, DSU is not entitled to recover damages
from W-T. Consequently, R+B’s motion for summary judgment on W-T’s cross claims
is granted.
III.

CONCLUSION–Czar, TCI, and R+B Motions for Summary Judgment
For the reasons discussed above:

I.

Czar Engineering, LLC’s Motion for Summary Judgment (D.I. 215) is

applies is not persuasive. The plaintiff there was injured when he fell from scaffolding,
allegedly erected negligently by defendant. Id. at *1. The scaffold’s wheels should
have been held in place by pins, which were absent. Id. While moving the scaffolding,
a wheel fell off causing the plaintiff injury from a resulting fall. Id. The court held that
because the alleged negligence in not putting the pins in place was within a layman’s
common knowledge, no expert testimony was required. Id. This is in no way similar to
R+B’s allegedly negligent design of the Panel Wall System, which the court has
determined is not something within the common knowledge of a lay person.
434
TCI
435
See D.I. 103 (Cross-Claims).
436
See D.I. 97 (Cross-Claims).
103

GRANTED in Part and DENIED in part:
A.

B.

GRANTED as to all co-defendants’ contribution cross-claims;

C.

GRANTED as to R+B’s indemnity cross-claim; and

D.
II.

GRANTED as to DSU’s Count I (Breach of Contract), Count III
(Negligence), and Count IV (Unjust Enrichment);

DENIED as to its limitation of liability.

Thomas Company, Inc.’s Motion for Partial Summary Judgment (D.I. 217) is:
A.
B.

DENIED as to the whether the only engineering required by TCI was the
connections back to the building;

C.

DENIED as to the constructability of R+B’s Panel Wall System; and

D.

III.

DENIED as to the enforceability of Czar’s limitation of liability provision;

DENIED as MOOT as to whether DSU’s proposed repairs constitute
economic waste.

Richärd+Bauer, LLC’s motion for summary judgment (D.I. 215) is:
A.

GRANTED as to the negligence, contribution, and indemnity cross-claims
by TCI, W-T, and Czar.

Precision Foam Fabricators, Inc.’s Motion for Summary Judgement against
Delaware State University and Thomas Company, Inc.
Thomas Company, Inc.’s Motion for Partial Summary Judgment against Precision
Foam Fabricators, Inc.
PFF moves for summary judgment in its favor on DSU’s Counts I (Breach of
Contract), III (Negligence), and IV (Unjust Enrichment) against PFF in the TAC (D.I.
180-2); and TCI’s claims for Breach of Contract, Unjust Enrichment, Breach of
Warranty, Common Law Indemnification and Contribution, and Contractual
Indemnification of TCI’s Counterclaim in its Answer to Answer, Affirmative Defenses

104

and Counterclaim to [PFF’s] Complaint in TCI’s Answer to Plaintiff Delaware State
University’s Second Amended Complaint, Counterclaim, Cross-Claims and Denial of All
Cross-Claims and Future Cross-Claims.437 TCI moves for summary judgment in its
favor on its Breach of Contract claim against PFF.438
The court first addresses PFF’s motion for summary judgment in its favor on
DSU’s Counts I, III, and IV in the TAC. Next, the court analyzes PFF and TCI’s crossmotions for summary judgment on TCI’s claim against PFF for breach of contract.
Lastly, the court discusses PFF’s motion for summary judgment in its favor on TCI’s
remaining claims against PFF for Unjust Enrichment, Breach of Warranty, Common
Law Indemnification & Contribution, and Contractual Indemnification alleged in its
counterclaims.
I.

DISCUSSION–PFF and TCI Motions for Summary Judgment
A.

DSU’S Claims against PFF

Beginning with PFF’s motion for summary judgment on DSU’s claims against it,
DSU’s breach of contract claim alleges it “was an intended third-party beneficiary of the
agreements reached between Thomas and its subcontractors and suppliers . . . PFF
. . . for the products, services and ongoing information they were obligated to provide

437

D.I. 205 (Precision Foam Fabricators, Inc. Motion for Summary Judgement
against Delaware State University and Thomas Company, Inc.). Briefing on the motion
is found at D.I. 206 (PFF Opening Brief); D.I. 222 (TCI Answering Brief); D.I. 231 (DSU
Consolidated Answering Brief); D.I. 234 (PFF Reply Brief to TCI); and D.I. 238 (PFF
Reply Brief to DSU).
438
D.I. 207 (Thomas Company, Inc. Motion for Partial Summary Judgment
against Precision Foam Fabricators, Inc.). Briefing on the motion is found at D.I. 209
(TCI Opening Brief); D.I. 223 (PFF Answering Brief); and D.I. 232 (TCI Reply Brief).
105

specifically for the benefit of DSU[,]”439 and “[u]pon information and belief . . . PFF . . .
was duly bound by the terms and conditions of their respective agreements, and such
obligations extend to DSU as an intended third-party beneficiary of those
agreements.”440
PFF contends it is entitled to summary judgment on DSU’s breach of contract
because DSU is not a third-party beneficiary of PFF’s contract with TCI.441
With respect to DSU’s status as a third-party beneficiary to the TCI-PFF contract,
PFF’s arguments, DSU’s response, and the court’s analysis are substantially identical
to those on the issue discussed with respect to Czar’s motion for summary judgment.
Therefore, the court incorporates its analysis of that issue from Czar’s motion and
briefly summarizes PFF and DSU’s respective arguments here.
PFF argues DSU’s third-party beneficiary theory fails because the TCI-PFF PO is
an express contract, lacking any warranty or indemnity obligations, and not even
referring to, or making, DSU a third-party beneficiary.442 PFF states its obligation under
that PO was simply to manufacture and deliver panels to the Project as specified, which
obligations it met.443
PFF points to the same provisions of the contract between DSU and TCI, AIA®
Document B132™–2009, Standard Form of Agreement Between Owner and Architect,

439

D.I. 180-2 ¶ 52.
Id. ¶ 53.
441
D.I. 206 at 9-10.
442
Id. at 2.
443
Id.
440

106

Construction Manager as Advisor Edition, which govern TCI’s obligations to DSU444 as
Czar highlighted. Section 1.1.2 of the General Conditions 445 governing DSU and TCI’s
relationship explicitly disclaims an intent to create third-party beneficiary status on DSU
with respect to TCI’s subcontractors on the Project.
The court thus reviews the TCI-PFF contract which provides in nearly identical
language as the TCI-Czar contract:
THIS ORDER IS COMPLETE WITH ALL THE ITEMS NECCESSARY
[sic] AND INCIDENTAL THERE TO IN STRICT ACCORDANCE WITH
THE ENTIRE CONTRACT DOCUMENTS PREPARED [sic] THE OWNER
AND/OR THEIR CONSULTANT, INCLUDING WITHOUT LIMITATION:
THE GENERAL, SPECIAL AND OTHER CONDITIONS, ALL
SPECFICIATIONS, [sic], DRAWINGS, AND INVITATIONS FOR BIDS,
BULLETINS, ADDENDA AND MODIFICATIONS THERETO. NO OTHER
CHANGES WILL BE ACCEPTED EXCEPT THOSE STATED HEREIN
AND AS PER THE CONTRACT DOCUMENTS. PROVIDE WRITTEN
DOCUMENTATION INDICATING IMPACTS FOR CHANGES AND
REVISIONS, WHEN REQUESTED.446
DSU’s argument with respect to this language in the TCI-PFF PO is substantially
identical to its argument with respect to the TCI-Czar PO, i.e., that it shows PFF is
“subject to performing its work in strict compliance with the contract documents and
General Conditions prepared by the Owner.”447 The court again finds that argument to
be little more than saying the language provides DSU as owner will benefit from the
TCI-Czar contract, the expected result of every subcontract. The court also reiterates
that DSU’s parallel statement it made in connection with Czar’s motion, i.e., that PFF’s

444

D.I. 195, Stip. Fact 14; D.I. 243-3, Stip. Ex 139; D.I. 206 at 10.
D.I. 243-1, Stip. Ex. 48 § 1.1.2 (emphasis added); D.I. 238 at 3.
446
Id., Stip. Ex. 8.
447
D.I. 231 at 38.
445

107

subcontract does not disclaim the creation of a third-party beneficiary relationship
between the Owner and subcontractor, 448 is not the proper inquiry. The proper inquiry is
whether there was an intent to create third-party beneficiary status on the part of DSU,
not whether such status exists absent disclaimer.449 The language in the TCI-PFF PO
evidences no such intent and DSU offers no other evidence showing otherwise. The
court agrees with PFF that its contract with TCI “does not contain terms and conditions,
or anything approaching the detail of the prime contract between DSU and TCI.”450
Consequently, because the court determines DSU is not an intended third-party
beneficiary to the TCI-PFF PO, PFF’s motion to for summary judgment on DSU’s Count
I breach of contract claim is granted.
DSU’s Count III negligence claim alleges “PFF manufactured and provided the
defective panels for the Project” upon which DSU relied and was damaged, “including
but not limited to damages to the building structure and property other than the panel
wall itself.”451
PFF argues it is entitled to summary judgment on DSU’s claim of negligence
design because DSU identifies no standard of care or duty owed by PFF, or PFF’s
breach of that duty, and that the negligence claim is barred by the economic loss

448

Id.
Cf. William M. Young Co. v. Bacon, C.A. No. 89L-JA2, 1991 WL 89817, at *4
(Del. Super. May 1, 1991) (“Young argues that Pierce holds that a third-party
beneficiary status will exist unless the parties have negated same in the language of the
contract. Young's position is incorrect.”).
450
D.I. 206 at 10.
451
D.I. 180-2 ¶¶ 63, 66-69.
449

108

doctrine.452
In its analysis of Czar’s motion on DSU’s Count III, the court determined that the
economic loss doctrine bars DSU’s negligence claim against Czar because no
exception to that doctrine allows recovery. PFF’s arguments on the application of the
doctrine are substantially similar to Czar’s. The same analysis applies to that claim as
alleged against PFF. Therefore, the court incorporates its analysis of that issue from
Czar’s motion and briefly summarizes PFF’s arguments.453
PFF cites the Third Circuit’s Pierce decision for the proposition that under
Delaware law, absent privity of contract, a party may not maintain a cause of action
sounding in negligence to recover for purely economic loss.454 PFF notes the Superior
Court of Delaware’s opinions in Guardian, adopting of § 552 of the Restatement
(Second) of Torts, and Millsboro, recognizing that adoption. 455
PFF argues the exceptions do not apply, asserting no party in the present case
disputes that: (1) DSU and PFF are not in privity of contract or its equivalent; and (2)

452

D.I. 206 at 10-14.
Thus, the court need not address PFF’s arguments regarding DSU’s failure to
identify the standard of care or duty owed by PFF. The court notes, however, that
elsewhere in this opinion the court grants W-T and PFF’s Motion to Strike the Thornton
Tomasetti Report because, inter alia, Dannettel is not qualified to offer the opinions
contained therein. The court also notes DSU does not directly address PFF’s
arguments for summary judgment based on the standard of care/duty issue in its
consolidated answering brief. DSU limits its to arguments to the assertion that it is a
third party beneficiary to the TCI-PFF contract. See D.I. 231 at 37-39.
454
D.I. 206 at 12 (citing Pierce Assocs., Inc. v. Nemours Found., 865 F.2d 530,
539 (3d Cir. 1988)).
455
Id. (citing Guardian Const. Co. v. Tetra Tech Richardson, Inc., 583 A.2d 1378,
1386 (Del. Super. 1990) and Millsboro Fire Co. v. Constr. Mgmt. Serv., C.A. No. 05C06, 2006 WL1867705, at *2 (Del. Super. June 7, 2006)).
453

109

DSU’s alleged losses are purely economic and do not involve property damage or
personal injury.456 Analogizing its position to Pierce, PFF maintains DSU cannot
recover against PFF for negligence where its damages are purely economic and there
is no privity of contract.457 PFF also contends there are no allegations of negligent
misrepresentation to allow the court to disregard the privity requirements.458
DSU did not respond to PFF’s arguments regarding Count III.
Despite being on notice of PFF’s arguments that there are no genuine issues of
material fact precluding summary judgment in its favor on its unjust negligence claim,
DSU responded only to the breach of contract subset of arguments advanced by PFF in
its briefing. Thus, based on the evidence and argument PFF provides in support of its
motion, and DSU’s failure to respond, the court determines that claim is abandoned.
There is no genuine issue of material in dispute, and PFF’s motion for summary
judgment on Count III is granted.459
DSU’s Count IV unjust enrichment claim alleges “Defendant[] . . . PFF . . . [was]
directly and unjustly enriched by [its] actions to DSU’s impoverishment and
detriment[,]”460 and “[a]s a result of [PFF’s] defective and deficient work, [its] enrichment

456

Id.
Id. (citing Pierce, supra, at 865 F.2d 539-41 (under Delaware law, owner had
neither a third party beneficiary claim nor a negligence claim against a subcontractor)).
458
Id. at 13.
459
See Baldonado v. Avrinmeritor, Inc., C.A. No. 13-833-SLR-CJB, 2014 W L
2116112, at *7 (D. Del. May 20, 2014) (responding to only a subset of arguments
subject to a dispositive motion is deemed abandonment of the un-responded to claims)
(citing cases), report and recommendation adopted, C.A. No. 13-833-SLR/CJB, 2014
WL 2621119 (D. Del. June 10, 2014).
460
D.I. 180-2 ¶ 71.
457

110

was unjustified, and there is no remedy available to DSU.”461
PFF contends it is entitled to summary judgment in its favor on DSU’s Count IV
unjust enrichment claim because DSU’s contracts with TCI and other parties provide full
relief.462 PFF makes substantially similar arguments as Czar which were addressed in
the court’s analysis of Czar’s motion. Here again, DSU’s claim fails.
In summary, DSU alleges separate breach of contract and unjust enrichment
claims against PFF.463 PFF argues quasi-contractual relief against a third party is not
appropriate where a contract exists and provides for full relief.464 PFF argues DSU
possess multiple direct contracts upon which it seeks relief.465 The prime contracts
DSU entered regarding the design, engineering, drawings, oversight, furnishing, and
installation of the Panels at issue purportedly provide for complete relief in the event of

461

Id. ¶ 72.
D.I. 206 at 13.
463
D.I. 180-2 (Counts I and IV).
464
D.I. 206 at 13 (citing Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 891
(Del. Ch. 2009); Chrysler Corp. v. Airtemp Corp., 426 A.2d 845, 855 (Del. Super. 1980)
(“‘The mere fact that a person benefits another is not itself sufficient to require the other
to make restitution.’ Ibid, comment c. In order to warrant restitution, the retention of the
benefit must be unjust. Ibid.” (citing Restatement of Restitution, Section 1). Absent a
showing that the plaintiff was unable to gain contractual relief, it was not entitled to
pursue its claims for quantum meruit, implied contract, or restitution against a third party
not in privity of contract.).
465
Id. at 13-14. PFF notes DSU contracted with TCI for the design, engineering,
drawings, furnishing and installation of the Wall System, which provides for relief in the
event of a contract breach. D.I. 195, Stip. Fact 14. T hose obligations were assured by
Liberty Mutual under the performance bond issued on TCI’s behalf and in favor of DSU.
D.I. 195, Stip. Fact 15. DSU contracted with R+B for the design, Drawings and
Specifications for, inter alia, the façade, which likewise provides relief for design or
defects. D.I. 195, Stip. Fact 7. DSU contracted with W-T for Construction Manager as
Advisor services, which also provides for relief for W-T’s breaches. D.I. 195, Stip.
Fact 12.
462

111

a breach.466 PFF asserts DSU’s failure to show a lack of basis for recovery under these
contracts that might otherwise justify quasi-contractual relief against PFF demonstrates
the unjust enrichment claim against PFF should be dismissed.467
DSU did not respond to PFF’s arguments regarding Count IV.
DSU’s Count I alleges a breach of contract claim against PFF; a claim it argues
in its opposition brief is supported under a third-party beneficiary argument.468 Despite
being on notice of PFF’s arguments that there are no genuine issues of material fact
precluding summary judgment in its favor on its unjust enrichment claim, DSU
responded only to the breach of contract subset of arguments PFF advanced in briefing
on its motion. Thus, based on the evidence and argument PFF provides in support of
its motion, and DSU’s failure to respond, the court determines that claim is abandoned,
there is no genuine issue of material in dispute, and PFF’s motion for summary
judgment on Count IV is granted.469
Thus, PFF’s motion for summary judgment on all claims asserted against it by
DSU is granted in its entirety.
B.

PFF and TCI’s Cross-Motions on TCI’s Breach of Contract Claim
against PFF

The court next proceeds to PFF and TCI’s cross-motions for summary judgment
on TCI’s breach of contract claims against PFF, followed by PFF’s motion for summary
judgment on TCI’s claims against PFF for unjust enrichment, breach of warranty,
466

D.I. 206 at 14.
Id.
468
See D.I. 231 at 37-38.
469
See Baldonado, 2014 WL 2116112, at *7.
467

112

common law indemnification and contribution, and contractual Indem nification.
The following procedural background is relevant to TCI’s breach of contract claim
against PFF.
On November 13, 2015, PFF initiated this litigation by filing suit against TCI in
New Castle County Superior Court.470 PFF asserted it had not been paid in full for the
metal panels it supplied on the Project, and asserted a claim against TCI for breach of
contract and a payment bond claim against TCI’s surety, Liberty Mutual.471 Thereafter,
the matter was removed to this court on the basis of diversity jurisdiction.472
TCI asserted counterclaims against PFF and joined DSU as a third-party
defendant.473 On December 18, 2015, TCI filed its Answer, Affirmative Defenses and
Counterclaim to [, PFF’s,] Complaint, alleging Breach of Contract (Count I), Unjust
Enrichment (Count II), Breach of Warranty (Count III), Common Law Indemnification
and Contribution (Count IV), and Contractual Indem nification (Count V) against PFF.474
On January 4, 2016, TCI filed a Third Party Complaint against DSU, alleging Breach of
Contract (Count I), Unjust Enrichment (Count II), and Violation of 29 Del. C. § 6516(f)
(Count III).475 Ultimately, the other parties were joined and the court granted a joint
motion to realign the parties with DSU as the plaintiff.476 On July 13, 2018, after
470

See D.I. 1-1 (PFF Complaint).
Id.
472
See D.I. 1 (Notice of Removal).
473
See D.I. 7 (TCI Answer and Counterclaim); D.I. 8. (TCI Third Party
Complaint).
474
D.I. 7.
475
D.I. 8.
476
See D.I. 73 (Joint Motion to Realign Parties). The court ordered the
realignment of the parties on May 1, 2018. See Docket Entry, May 1, 2018 (SO
471

113

realignment of the parties, TCI filed its Answer to Plaintiff Delaware State University’s
Second Amended Complaint, Counterclaim, Cross-Claims and Denial of All CrossClaims and Future Cross-Claims.477 TCI’s July 13, 2018 filing reiterated its original
claims against PFF, but under different Count numbers.478
TCI’s breach of contract claim alleges it “entered a contract with [PFF] to
purchase certain metal panels and related material for use on the Project[,] that
“required PFF to deliver materials ‘in strict accordance’ with the ‘general, special and
other conditions, all specifications, drawings, initiations for bids, bulletins, addenda and
modifications thereto’ issued for Project.”479 “PFF failed to timely deliver its materials to
the Project, resulting in delay and additional costs to [TCI,]” and “when PFF did deliver
its materials, they were deemed defective by DSU and/or its representatives, causing
[TCI] to incur additional costs to investigate, mitigate, remove and reinstall the
materials.”480

ORDERED D.I. 73 Joint MOTION Re-align parties filed by Delaware State University).
477
D.I. 103.
478
TCI’s original complaint includes these claims against PFF. See D.I. 7. After
additional parties entered the litigation, and the court’s realignment making DSU the
plaintiff, TCI’s July 13, 2018 filing reiterated its claims against DSU made in D.I. 8,
added a cross-claim for indemnification against R+B, Czar, PFF, W-T, and Ashford (D.I.
103, Cross-Claim Count I), and reiterated its breach of contract, unjust enrichment, and
breach of warranty claims against PFF. Id. (Cross-Claims II, III, and IV, respectively).
Although TCI references the claims recited in D.I. 103 at the beginning of its opening
brief in support of its affirmative motion for summary judgment, and in its opposition
brief to PFF’s affirmative motion, (see D.I. 209 at 1; D.I. 222 at 1, respectively), TCI and
PFF each refer to the Count numbers from D.I. 7 in their respective briefs. To avoid
confusion, the court refers to the basis of the claim being discussed rather than count
number, e.g., “breach of contract,” rather than “Count x.”
479
D.I. 103 at 13-14, ¶¶ 3-4.
480
Id. at 14, ¶ 6.
114

To prevail on a breach of contract under Delaware law, a party must show: (1)
the existence of a contract; (2) breach of an obligation imposed by the contract; and (3)
damages resulting from said breach.481 PFF asserts TCI cannot demonstrate facts
essential to elements 2 and 3 and it is entitled to summary judgment.482
Specifically, PFF argues no party has established that PFF is the cause of the
Panel deformations.483 PFF asserts there is no evidence that it is the cause of the
deformations, which all parties agree are caused by differential temperature between
the outside and interior panel skins. 484 PFF maintains it met its contractual obligation to
TCI manufacture and deliver panels to the Project as specified.485
TCI argues the evidence shows that PFF breached its contract with TCI related
to the first set of panels PFF supplied on the Project because those panels did not m eet
the requirements of the Project Specifications and did not match the approved panel
sample PFF supplied.486 As a result of that alleged breach, TCI maintains it is entitled
to partial summary judgment related to damages it suffered due to delays resulting from
PFF’s breach.487
It is important to reiterate that TCI’s breach of contract claim against PFF only
481

Markow v. Synageva Biopharma Corp., C.A. No. C.A. No. N15C–06–152
WCC CCLD, 2016 WL 1613419, at *4 (Del. Super. Mar. 3, 2016). PFF acknow ledges
“there is no dispute that TCI and PFF entered into a valid PO,” but assets “that PO was
strictly limited only to PFF’s manufacture and delivery of the Panels per the
specifications TCI provided PFF. . . .” D.I. 234 at 6.
482
D.I. 206 at 15.
483
Id. at 1-2.
484
Id. at 2.
485
Id.
486
Id.
487
Id.
115

concerns the first set of panels PFF supplied, and the damages, if any, TCI suffered as
a result of the purported breach. The following are relevant contracts, requirements,
time lines, and events relevant to PFF and TCI’s cross-motions.
On January 12, 2012, DSU and W-T entered into a contract titled AIA®
Document C132™ – 2009, Standard Form of Agreement Between Owner and
Construction Manager as Adviser; AIA® Document A232™ – 2009, General
Conditions of the Contract for Construction, Construction Manager as Adviser
Edition; and Section 00730–SUPPLEMENTARY GENERAL CONDITIONS TO THE
CONTRACT.488
On January 20, 2012, DSU retained R+B as the Architect of Record for the
OSCAR Facility pursuant to an AIA® Document B132™--2009, Standard Form of
Agreement Between Owner and Architect, Construction Manager as Adviser
Edition.489
On December 27, 2013, DSU entered a contract with DSU entered a contract
with TCI entitled AIA® Document A132™--2009, Standard Form of Agreement
Between Owner and Contractor, Construction Manager as Adviser Edition for the
Wall System in connection with the Project.490 On January 20, 2014, TCI entered into a
valid and binding purchase order contract with PFF to purchase insulated panels for the

488

D.I. 195, Stip. Fact 12; D.I. 243-2, Stip. Ex. 94 (DSU-W-T contract); D.I. 2432, Stip. Ex. 48 (General Conditions); & D.I. 243-3, Stip. Ex. 140 (Section 00730),
respectively.
489
D.I. 243-1, Stip. Ex. 47.
490
D.I. 195, Stip. Fact 14; D.I. 143-3, Stip. Ex. 139.
116

benefit of the Project and Owner,491 which states:
THIS ORDER IS COMPLETE WITH ALL THE ITEMS NECCESSARY
[sic] AND INCIDENTAL THERE TO IN STRICT ACCORDANCE WITH
THE ENTIRE CONTRACT DOCUMENTS PREPARED [sic] THE OWNER
AND/OR THEIR CONSULTANT, INCLUDING WITHOUT LIMITATION:
THE GENERAL, SPECIAL AND OTHER CONDITIONS, ALL
SPECFICIATIONS, [sic], DRAWINGS, AND INVITATIONS FOR BIDS,
BULLETINS, ADDENDA AND MODIFICATIONS THERETO. NO OTHER
CHANGES WILL BE ACCEPTED EXCEPT THOSE STATED HEREIN
AND AS PER THE CONTRACT DOCUMENTS. PROVIDE WRITTEN
DOCUMENTATION INDICATING IMPACTS FOR CHANGES AND
REVISIONS, WHEN REQUESTED.492
Section 3.12.3 of the Project’s General Conditions requires the Contractor to
recites “Samples are physical examples that illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.493
W-T had “the authority to reject work that does not conform to the Contract
Documents.”494
On May 14, 2014, the Project architect, R&B, approved a sample of the metal
panels supplied by PFF.495
The Specifications required the PFF supplied panels to have a mirrored finish,496

491

D.I. 1-1 (Precision Foam Fabricators, Inc. v. Thomas Co., Inc., C.A. No.
N15C-11-115 CLS (Del. Super. Nov. 13, 2015), ¶¶ 9, 17; D.I. 243-1, Stip. Ex. 8.
492
D.I. 243-1, Stip. Ex. 8.
493
Id., Ex. 48 (General Conditions) § 3.12.3.
494
Id., Stip. Ex. 48 (General Conditions) § 4.2.8; see also D.I. 243-3, Stip. Ex. 94
(DSU-W-T Contract) § 3.3.14.
495
D.I. 207-2, Ex. A (May 14, 2014 Approval) at Thomas0044 (“The sample
submitted is acceptable . . . .”).
496
D.I. 243-1, Stip. Ex. 3 (Specifications, Nov. 14, 2013, Addendum 3) at
§ 2.3.B.2 (“Exterior face . . . to be polished stainless with . . . with [ ] polished mirror
finish”).
117

which PFF acknowledges was provided the Specifications.497
The first set of PFF panels was timely delivered to the Project on September 30,
2014.498 The Project schedule issued by W-T in effect at the time required panel
installation be completed by October 27, 2014. 499 Installation began on October 6,
2014.500 When installation began, W-T advised TCI that the finish on the installed
panels “does not match the samples.”501 Specifically, the delivered panels had a “dull,”
“hazy” or “cloudy” look rather than the mirrored appearance of the samples.502
On October 8, 2014, DSU formally notified TCI that there was a “discrepancy
between the exterior finish of the insulated panels that have been supplied and the
sample that was reviewed and approved by the Architect” and requested an immediate
meeting with TCI, PFF, W-T and R&B to address the issue. 503
PFF participated in an October 9, 2014, telephonic conf erence and an October

497

D.I. 223 at 1; D.I. 234 at 6.
D.I. 195, Stip. Fact 25; see also D.I. 2007-2, Ex. B (Oct. 13, 2014 DSU email)
at Thomas005.
499
D.I. 207-2, Ex. C (Sept. 1, 2014 Project Schedule Update) at T homas009.
PFF states the PO made no reference to any schedule and no schedule–or any of the
other alleged contract documents–accompanied the PO. D.I. 223 at 1 (Disputed Fact
2).
500
D.I. 243-3 Stip. Ex. 124 (Oct. 30, 2014 Project Minutes), at DSU0003821; D.I.
243-12 (George Dep.) at 309:9-23 (confirming minutes are accurate).
501
D.I. 243-3, Stip. Ex. 125 (Oct. 6, 2014 email).
502
D.I. 207-2, Ex. D (Oct. 8, 2014 email) at Thomas014-017 (describing panels
as “‘dull’ not mirror like samples”); id., Ex. B (Oct. 13, 2014 DSU email) at Thomas005
(describing panels as “cloudy”); D.I. 243-16 (Mefferd Dep., PFF corporate designee) at
176:25-177:20 (describing panels as “cloudy” and not “shiny”); D.I. 243-12 (George
Dep., W-T corporate designee) at 309:24-310:7 (“[W]e . . . started looking at the finish,
it was a little blurry, it wasn’t that mirror finish that the sample was original provided
was.”), 176:13-19 (“the first panels were rejected because the finish was not correct”).
503
D.I. 243-1, Stip. Ex. 21 (Oct. 8, 2014 Letter).
498

118

10, 2014 in-person meeting to address the issue. 504 At the time, all parties present,
including PFF, “agreed that the metal finish on the first batch of panels that was
fabricated does not all align with what was represented by the product sample that was
submitted and approved.”505 Thereafter, DSU formally rejected the PFF panels,
confirming the rejection in a formal notice subsequently issued on October 21, 2014. 506
At deposition, PFF’s corporate designee, Ricky Mefferd, testified that the first set
of Panels were rejected due to their appearance.
Q. . . . Ultimately, the first batch of panels that were delivered to the
site were rejected, were they not?
A. They were rejected based on the appearance or esthetics of the
panel.
Q. Okay.
A. That is correct.
Q. And what is your understanding the problems or issues with the
appearance and the esthetics of the panels that were delivered?
A. My understanding is that the owner did not believe that it matched or
appeared–it was a different shade than what his–what he had agreed
upon, I'll call it.
Q. A different shade?
A. A different–not a shade–appearance, I guess, not shade, but . . .

504

D.I. 243-3, Stip. Ex. 127 (Minutes of Oct. 9, 2014 Telephonic Conference);
D.I. 207-2, Ex. B (October 13, 2014 DSU Email) at Thomas005 (summarizing Oct. 10,
2014 meeting).
505
D.I. 207-2, Ex. B (Oct. 13, 2014 DSU email) at Thomas005 (summarizing Oct.
10, 2014 meeting).
506
See D.I. 243-3, Stip. Ex. 104 (Oct. 21, 2014 Letter); D.I. 243-12 (George
Dep.) at 176:18-19 (“the first panels were rejected because the finish was not correct”).
119

Q. It was cloudy?
A. It was cloudy.
Q. It wasn't shiny?
A. Right.507
As a result of the aesthetic defect, Mefferd testified PFF manufactured, and paid
for, new panels.
A. What, if anything, did [PFF] do to correct—did you manufacture new
panels?
A. We did.
Q: Who paid for that?
A. PFF.
Q. Okay. So PFF paid for it acknowledging that the ones delivered
were unacceptable?
A. Based on the finish, correct, yes.508
Mefferd testified PFF acknowledged, and accepted responsibility for, the
rejection.
Q. You acknowledge that the panels were rejected?
A. I do.
Q. And you accepted responsibility for the rejection, correct?
[Objection]
A. We did.

507
508

D.I. 243-16 (Mefferd Dep.) at 176:25-177:20 (emphasis added).
Id. (Mefferd Dep.) at 178:17-24 (emphasis added).
120

Q. And you agreed to provide replacement panels that met the
specifications, correct?
A. Yes.509
The court finds the evidence shows, with respect to the first panels delivered,
that PFF breached its contract with TCI. PFF admits “there is no dispute that TCI and
PFF entered into a valid PO, that PO was strictly limited only to PFF’s manufacture and
delivery of the Panels per the [S]pecifications TCI provided PFF . . . .”510 PFF states the
panels were only rejected “on aesthetic grounds.511 That, however, is the point. The
Specifications required the PFF supplied panels to have a mirrored finish.512
Correspondence, contemporaneous documentation, and Mefferd’s testimony confirm
the first set of panels PFF delivered did not meet that requirement.
In an attempt to negate the impact of Mefferd’s testimony, PFF submits the
affidavit of former PFF employee Daniel Garner attached to its brief opposing TCI’s
motion,513 and challenges TCI’s arguments for:
TCI blindly rel[ying] on PFF’s corporate designee, who testified that (a)
PFF’s assets were sold in 2016; (b) he only had knowledge that PFF had
a contract and was not involved in the Project; and (c) disputed much of
what TCI now relies upon. Mr. Garner . . . was the better person to testify
to these items. Mr. Garner retired in 2016 and no party subpoenaed him
for deposition testimony.514

509

Id. (Mefferd Dep.) at 211:22-212:6 (emphasis added).
D.I. 234 at 6.
511
D.I. 206 at 2; D.I. 234 at 1.
512
D.I. 243-1, Stip. Ex. 3 (Specifications, Nov. 14, 2013, Addendum 3) § 2.3.B.2
(“Exterior face . . . to be polished stainless with . . . with [ ] polished mirror finish”).
513
D.I. 223-1 (Garner Aff.).
514
D.I. 223 at 4 n.7 (citing D.I. 243-16 (Mefferd Dep.) at 11:1-8, 19:9-16;
19:21-20:3); D.I. 234 at 4 n.4 (same).
510

121

The court finds PFF’s criticism is unwarranted.
A “Rule 30(b)(6) designee presents the corporation's, rather than his personal,
‘position’ on a topic and, in addition to testif ying about facts within the corporation's
knowledge, testifies about the corporation's subjective beliefs and opinions, and its
interpretation of documents and events.”515 “A corporation has an affirmative duty to
produce a representative who can answer questions that are within the scope of the
matters described in the notice.” 516 “The duty of preparation goes beyond the
designee's personal knowledge and matters in which the designee was personally
involved. If necessary, the deponent must use documents, past employees, or other
resources to obtain responsive information.”517
Generally, “[a] party may not retract prior 30(b)(6) testimony with a later affidavit,
and then use that affidavit to preclude summary judgment.”518 As the Daubert Court
explained:
Where the nonmovant in a motion for summary judgment submits an
affidavit that directly contradicts an earlier Rule 30(b)(6) deposition and
the movant relied upon and based its motion on the prior deposition,
several courts have disregarded the later affidavit. However, where the
affidavit is ‘accompanied by a reasonable explanation’ of why it was not
offered earlier, courts have allowed a contradictory or inconsistent affidavit
to nonetheless be admitted to supplement the earlier submitted Rule
30(b)(6) testimony.519

515

Ethypharm S.A. France v. Abbott Labs., 271 F.R.D. 82, 93 (D. Del. 2010).
Crawford v. George & Lynch, Inc., 19 F. Supp. 3d 546, 554 (D. Del. 2013).
517
Id. (internal citations omitted) (emphasis added).
518
Daubert v. NRA Grp., LLC, 189 F. Supp. 3d 442, 458–59 (M.D. Pa. 2016),
aff'd in relevant part, 861 F.3d 382 (3d Cir. 2017). W hether to disregard an affidavit
under the sham-affidavit doctrine is up to the court’s discretion. See Daubert, 861 F.3d
at 389.
519
Id. at 258 (citations omitted).
516

122

As TCI contends, Mefferd’s testimony was undoubtedly within the scope of the
topics about which he was to testify.520 Here, PFF provides no explanation why the
information Garner provides was not offered earlier, or why that information was
unavailable to Mefferd prior to his deposition. Mefferd testified Garner was the most
knowledgeable individual about the subject matter of the litigation and would have
“extremely” important information.521 He was sure PFF had Garner’s contact
information, but he did not attempt to speak to Garner in preparation for his Rule
30(b)(6) deposition. 522
Thus, the court grants TCI’s motion, and denies PFF’s motion, to the extent each
seek summary judgment on TCI’s breach of contract claim against PFF.523 The court
must now determine whether summary judgment is appropriate on TCI’s claim for
damages as a result of that breach.
TCI argues it should be granted judgment in its favor and against PFF in the

520

D.I. 232 at 5 (citing D.I. 243-1, Stip. Ex. 4 (Rule30(b)(6) Notice of Deposition
to PFF); id., Stip. Ex. 24 (Supplemental Rule 30(b)(6) Notice to PFF); D.I. 234-16
(Mefferd Dep.) at 11:22-24, 201:5-8 (confirming designee was prepared to testify as to
all topics in the notices)).
521
D.I. 234-16 (Mefferd Dep.) at 136:23-137:17; 201:18-24.
522
Id. In response to PFF’s criticism that no other party subpoenaed Garner, TCI
states that once PFF’s 30(b)(6) witness acknowledged the finish defect in the first set of
panels, it relied on that testimony and had no need to subpoena Garner. Separately ,
PFF’s argument that Mefferd’s testimony “only confirms PFF’s present general
understanding of why the Owner rejected the Panels by an individual who had no
involvement in the Project contemporaneously . . . not that it agreed with any rejection
or the existence of any alleged aesthetic defects[,]” D.I. 234 at 4, is similarly
unpersuasive. Mefferd was PFF’s 30(b)(6) witness, his contemporaneous involvement
in the Project was not necessary for him to testify in that role.
523
Because the court determines the first set of panels breached the contract for
lack of compliance with the specification, it need not address the parties’ argument that
a breach is also shown because the first set of panels did not match the sample panels.
123

amount of $163,622.68 plus prejudgment interest of $46,398.80 through the date of its
motion (and accruing at $25.78 per day thereafter) related to the first set of defective
panels PFF supplied on the Project. 524
PFF argues its motion should be granted on TCI’s claim for damages because
TCI did not provide any expert report or testimony that PFF delayed the Project or
caused TCI field inefficiency or additional costs.525 PFF argues TCI’s failure to provide
expert testimony that PFF breached any duty or caused delay to the Project precludes
recovery for claimed delay damages, particularly, where, as here, TCI has sought
recovery for delays from the Owner, not PFF.526 Similarly, PFF argues TCI’s motion
should be denied because TCI has not met its burden of showing the rejection of the
first set of panels actually delayed and impacted TCI or that TCI’s damages resulted
from PFF’s breach and not for other causes, including TCI’s own failures to mitigate.527
The following evidence is relevant to the damages issue.
The first set of PFF panels was timely delivered to the Project on September 30,
2014.528 Installation began on October 6, 2014 529 despite finish issues being noted and
TCI notifying PFF of the issue that day.530 On October 8, 2014, DSU issued a letter

524

D.I. 209 at 2.
D.I. 206 at 6.
526
Id. at 2.
527
D.I. 223 at 1.
528
D.I. 195, Stip. Fact 25; see also D.I. 2007-2, Ex. B (Oct. 13, 2014 DSU email)
at Thomas005.
529
D.I. 243-3 Stip. Ex. 124 (Oct. 30, 2014 Project Minutes), at DSU0003821; D.I.
243-12 (George Dep.) at 309:9-23 (confirming minutes are accurate).
530
See D.I. 207-2, Ex. B (Oct. 13, 2014 email) at Thomas005.
525

124

identifying the concern and TCI ceased panel installation that day.531
On October 10, 2014, the parties met to discuss a path forward.532 At that
meeting, the parties agreed that the overall project schedule it did not appear the
overall project schedule would be impacted by the panel replacement issue.533 PFF
agreed to manufacture replacement panels at its cost. 534 DSU and W-T approved
PFF’s proposed replacement panels on October 29, 2014. 535 The replacement panels
were delivered to the Project on October 31, 2014 and were confirmed to have the
appropriate mirrored finish.536
After the first set of panels was rejected, W-T advised TCI that the rejection
cased a delay to the Project and that TCI would have to establish a recovery schedule
to avoid impact to the overall schedule.537 W-T also advised TCI it would not be paid for
any work on the Project until the replacement panels were delivered.538 W-T further
instructed TCI to provide a “make-up once the panels are onsite due to the f inish delay”
and that it was expecting 10-hour days 5 days per week and an additional 8-hour shift

531

Id.
Id.
533
Id. at Thomas006. W-T’s designee stated it was able to mitigate the affect of
TCI’s delay relating to panel replacement on other trades involved in the Project. D.I.
243-12 (George Dep.) at 208:1-4.
534
See D.I. 243-16 (Mefferd Dep.) at 178:17-24.
535
See D.I. 207-2, Ex. G (Oct. 29, 2014 Email) at Thomas022.
536
See D.I. 207-2, Ex. H (Nov. 4, 2014 Email) at Thomas023-024. At the time of
rejection, Thomas had already installed 12 panels. See D.I. 243-3, Stip. Ex. 127
(Minutes of Oct. 9, 2014 Telephonic Conference).
537
See D.I. 243-3, Stip. Ex. 104 (Oct. 21, 2014 Letter).
538
See D.I. 207-2, Ex. F (Oct. 13, 2014 Email) at Thomas019.
532

125

on Saturdays.539
Mefferd’s testimony acknowledged there was a cost to remove the rejected
panels that had been installed, and that som e period of time necessarily elapsed after
the first set of panels was rejected until it delivered replacement panels to be
installed.540 Although he assumed TCI had a schedule it was required to keep with
respect to the Project, he was not privy to that schedule. 541 The TCI-PFF PO did not
reference any schedule and there is no evidence TCI provided PFF any other
documents, except for the Specifications, when TCI issued the PO to PFF. 542
TCI submits a lengthy summary of its damages from October 5, 2014 through
July 23, 2015 in support of the amount of damages it seek from PFF.543 Based on the

539

See, e.g., Id., Ex. I (Oct. 22, 2014 email) at Thomas025; id., Ex. J (Oct. 29,
2014 email) at Thomas026 (confirming Thomas would work “10-hour days plus
Saturdays to get back on schedule.”); D.I. 243-12 (George Dep.) at 297:9-17(testifying
that W-T advised TCI of the need to continue working overtime to make up for time lost
because of the rejected PFF panels).
540
D.I. 243-16 (Mefferd Dep.) at 203:13-17, 205:13-17, 211:2-6.
541
Id. (Mefferd Dep.) at 203:7-12. He testified that PFF “do[esn’t] get production
schedules on a normal basis for all of our customers.” Id. (Mefferd Dep.) at 207:18208:1.
542
Mefferd testified PFF did not receive other relevant documents until the issues
with the first set of panels arose. See id. (MefferdvDep.) at 24:14-23, 51:14-19, 56:613; 207:18-208:1.
543
D.I. 207-2, Ex. K (Audited Damages Calculation and Project Payroll and
Expense Records). Expenses TCI attributes to the delay caused by the rejection of the
first set of PFF panels are: $53,345 in direct labor costs to erect the orig inal defective
panels, id., Ex. K at Thomas052 (calculation of direct labor costs to erect panels) and
Thomas044-200 (audited payroll and Project expense records); $54,074.65 in direct
labor costs to remove the erected defective panels, id., Ex. K at Thomas033
(calculation of direct labor costs to remove panels) and Thomas044-200 (audited
payroll and Project expense records); $32,758.94 in overtime costs as a result of
accelerating work to mitigate the delay caused by the original defective panels. id., Ex.
K at Thomas034 (calculation of overtime costs incurred related to first set of defective
panels) and Thomas044-200 (audited payroll and Project expense records). TCI
126

expenses set forth therein, and the amount it attributes to PFF, TCI calculates its
damages resulting from PFF’s breach of contract are $163,622.68. 544 It calculates
statutory interest on $163,622.68, from the date of breach, September 30, 2014, to the
date of this motion totals $46,398.80. 545
The court denies TCI’s motion with respect to damages. Compensation for injury
due to a breach of a contract should “place [the injured party] in the same position that
he would have been in if the contract had been performed. The measure of damages
is the loss actually sustained as a result of the breach of the contract.”546 However, “[a]
court must . . . reduce the calculated damages by the amount of loss ‘that [the plaintiff]
could have avoided by reasonable efforts.’”547
[O]n a motion for summary judgment the evidence and inferences drawn
from it are viewed in the light most favorable to the non-moving party . . . .
It is axiomatic that a plaintiff, in order to recover damages from a
defendant for breach of contract, must demonstrate with reasonable
certainty that defendant's breach caused the loss. Reasonable certainty
is not equivalent to absolute certainty; rather, the requirement that plaintiff

asserts that, overall, it was delayed 10 months in the completion of the Project, resulting
in additional field/general conditions costs of $193,340.875 (for supervision, equipment
rentals, job trailer, etc.) and additional home office overhead of $41,092.20. id., Ex. K at
Thomas039 (calculating delay and additional field/general conditions costs). TCI
attributes one month of that delay (Sept. 30, 2014-Oct. 31, 2014), or 10%, to PFF,
resulting in additional field/general condition costs of $19,334.09 in costs and additional
home office overhead costs of $4,109. See D.I. 195, Stip. Facts 25 (showing initial
panels delivered Sept. 30, 2014); D.I. 243-3, Stip. Ex. 124 and D.I. 207-2, Ex. H (Nov.
4, 2014 email) at Thomas023 (showing replacement panels delivered Oct. 31, 2014).
544
See D.I. 207-2, Ex. K (Audited Damages Calculation and Payroll Records) at
Thomas027-200.
545
D.I. 207-2, Declaration of George Thomas, at Thomas004-005 ¶ 4 (calculating
prejudgment simple interest of 5.75% per annum with daily interest of $25.78).
546
J.J. White, Inc. v. Metro. Merch. Mart, 107 A.2d 892, 894 (Del. Super. 1954).
547
Vici Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 294-95; 299 (3rd Cir.
2014) (alteration in original) (internal quotation marks and citations omitted).
127

show defendant's breach to be the cause of his injury with “reasonable
certainty” merely means that the fact of damages must be taken out of the
area of speculation.548
TCI argues its actual costs in correcting PFF’s defective performance is the
correct measure of damages here, and the only method of demonstrating that cost is
through TCI’s financial records.549
With respect to TCI’s motion for damages, the focus is the damages TCI
allegedly suffered due to the delay resulting from PFF’s rejected first set of panels, and
the extent those damages are attributable to PFF with reasonable certainty. PFF
asserts TCI fails to meet its burden to prove its resulting damages.550
PFF states the delay in the installation of the replacement panels did not impact
the overall Project schedule. 551 The overall Project schedule is not the precise issue,
however, the issue is what damages TCI specifically suffered as a result of the delay
from the rejection of the first set of panels.
TCI requests summary judgment as to a specific amount of damages, but PFF
presents arguments raising a reasonable doubt as to the amount of damages to which
TCI may be entitled. First, PFF raises the issue of whether TCI attempted mitigation
with respect to TCI’s extra expenses, noting TCI continued to install additional panels
from the first set delivered after being apprised of the finish issue, and now seeks

548

Tanner v. Exxon Corp., No. 79C-JA-5, 1981 WL 191389, at *1 (Del. Super.
1981) (citations omitted); see also Vici Racing, 763 F.3d at 294 (stating damages may
not be speculative).
549
D.I. 232 at 9-10.
550
D.I. 223 at 9.
551
Id.
128

damages for the installation and removal of those additional panels. 552
PFF also contends TCI’s support for its claims to recover direct and indirect
costs from PFF for the installation and removal of rejected panels, and alleged
acceleration and delay costs, is dubious and speculative.553 Despite TCI’s
representation its damages are based on an audited financial statements reflecting
actual payroll costs and expenses incurred as a result of PFF’s breach,554 that exhibit
includes the following statement from the accounting firm that compiled the report:
We have not audited or reviewed the accompanying summary, nor were
we required to perform any procedures to verify the accuracy or
completeness of the information contained in the summary, which was
prepared by management, and, accordingly, we do not express an
opinion, a conclusion, nor provide any assurance about whether the
summary is in accordance with the contractual basis of accounting that is
a basis of accounting the entity uses to comply with terms of a contract
with third-parties.555
PFF argues, therefore, that the amounts on which TCI requests summary judgment are
nothing more than TCI’s self-allocation of costs allegedly attributable to PFF, with no
corresponding analysis or rationale justifying those costs.556 PFF also argues TCI
makes no effort to trace or substantiate these claimed costs against the materials
allegedly provided in support thereof, and that it is not possible to reverse engineer or
back into these numbers using the information TCI provided.557

552

TCI states it mitigated the delay to the overall Project by its acceleration of
work, see, e.g., D.I. 222 at 11, at great costs that it now seeks to recover from PFF.
553
D.I. 234 at 8.
554
See, e.g., D.I. 209 at 9 (citing D.I. 207-2, Ex. K); D.I. 222 at 13 (same).
555
D.I. 207-2, Ex. K at Thomas029
556
D.I. 223 at 5, 9.
557
Id.
129

TCI responds that PFF provides no effective defense to its calculations and cites
no evidence to dispute the veracity of the damages calculations.558 It also suggests
PFF could have challenged TCI about the legitimacy of its damages claim or
questioned the underlying data at the 30(b)(6) deposition of TCI.559
TCI does not convincingly respond to either PFF’s questioning of its effort to
mitigate its own damages, as opposed to avoiding delay of the overall Project, or the
veracity of the unaudited calculation of expenses. It is TCI’s burden to establish the
damages for which it seeks summary judgment. PFF has raised reasonable questions
creating a genuine issue of material fact as to the appropriate amount of damages.
Therefore, although PFF’s breach is established, TCI has not proven its
entitlement to the amount of damages it seeks and its motion for summary judgment as
to that amount is denied.
Because the court granted TCI’s breach of contract claim against PFF, the court
need not examine the parties’ arguments as to whether to sever trial on the issue of the
first set of panels. The court determines that the sole determination at trial of TCI’s
damages as a result of that breach does not warrant severance of that discrete issue.
Thus, the court denies TCI’s request for severance and/or a separate trial on its breach
of contract claim against PFF.
C.

TCI’s Remaining Claims Against PFF

TCI’s breach of warranty claim alleges that PFF “expressly and impliedly

558
559

D.I. 232 at 9.
Id.
130

warranted the fitness of its materials for use on the Project, but PFF has breached that
warranty.”560 TCI contends the TCI-PFF contract contains an express warranty and the
evidence in the record supports a claim for breach of implied warranty.561
PFF maintains TCI offers no evidence to establish that PFF breached any such
warranties.562 It states there are no express warranty provisions in the TCI-PFF PO
and, although the PO generically references some documents, none provide an
express or affirmative warranty by PFF; and, except the for the Specifications, none of
the documents mentioned in the final paragraph of the PO were provided to PFF until
after the PFF’s work was done.563 PFF maintains that absent any language in the PO
expressly stating that PFF warrants the panels or any specific provision, there is no
express warranty and, therefore, nothing upon which TCI can rely to show that PFF
breached an express warranty.564
TCI does dispute PFF’s assertion it did not receive certain documents. It argues,
however, whether PFF reviewed the incorporated documents before it entered into the
TCI-Czar Contract is irrelevant because PFF is bound by their terms.565 TCI also
maintains the document PFF admits to reviewing, the Specifications, contains the

560

D.I. 103 at 15, ¶ 11.
D.I. 222 at 2.
562
D.I. 206 at 16.
563
Id. (citing D.I. 231-1, Stip. Ex. 8 (TCI-PFF PO); D.I. 243-16 (Mefferd Dep.) at
24:14-23; 51:14-20; 56:6-13; 207:18-208:1; D.I. 243-1, Stip. Ex . 11 (Feb. 16, 2015
email from Dan Garner of PFF to George Thomas of TCI) (PFF received specification
(only) on 11-18-13)).
564
D.I. 206 at 16-17.
565
D.I. 222 at 14.
561

131

warranty provision.566
The court finds the evidence does not support TCI’s claim for breach, or
existence of, an express warranty. First, in response to PFF’s motion, TCI provides
scant legal support for its statement that whether PFF reviewed the purportedly
incorporated documents prior to entering its contract with TCI is irrelevant.567 PFF,
however, notes that Delaware courts have held “[a] contract may be created by
reference to the terms of another instrument if a reading of all documents together
gives evidence of the parties’ intention and the other terms are clearly identified.”568
However, “[a] mere reference in one agreement to another agreement, without more,
does not incorporate the latter agreement into the former by reference.”569 Read
together, the Specifications PFF acknowledges receiving, and other documents

566

D.I. 234 at 9 (citing D.I. 243-1, Stip. Ex. 3 § 1.9 (requiring provision of a one
year warranty that “panels are free from defects in materials and workmanship” and to
replace or repair any defective panels during that timeframe).
567
TCI cites a footnote several pages earlier in its brief raising the issue of an
affidavit negating concessions in previous deposition testimony about rejection of PFF’s
panels. D.I. 222 at 14 (citing id. at 5 n.5). Neither the affidavit nor deposition testimony
addressed a warranty. The extent of its legal citation on the topic in TCI’s opening brief
in support of its motion is that a party “is presumed to have read the [] agreement and,
by signing it, agreed to be bound by the terms set forth in the agreement and those
incorporated by reference[,]” Rose Heart, Inc.v. Ramesh C. Batta Assocs., P.A., C.A.,
1994 WL 164581, at *4 (Del. Super. Apr. 12, 1994), and that a “Def endant is presumed
with knowledge of the terms of the contract it executed, including those terms
incorporated by reference.” Healy v. Silverhill Const. Co., 2007 WL 2769799, at *3 (Del.
Com. Pl. Sept. 19, 2007). D.I. 209 at 12 n.6. T CI’s attempted reliance on the Garner
affidavit has been discussed above.
568
Realty Growth Investors v. Council of Unit Owners of Pilot Point
Condominium, 453 A.2d 450, 454 (Del. 1982).
569
Wolfston v. Supermarkets General Holdings Corp., C.A. No. 17047, 2001 W L
85679, at *5 (Del. Ch. Jan. 23, 2001).
132

identified by TCI,570 do not show that intent. The express warranty provisions in each of
those document concern TCI’s obligations to DSU, not PFF’s obligations to TCI. The
court has determined elsewhere in this opinion that DSU does not have third-party
beneficiary status with respect to the subcontracts of any defendants with which it has
direct contracts for the Project. Thus, the court grants PFF’s motion for summary
judgment on TCI’s express warranty claim.
PFF also argues TCI fails to demonstrate how it breached an implied warranty of
fitness. Under Delaware law, a plaintiff claiming breach of the implied warranty of
fitness for a particular purpose, must prove that: (1) plaintiff had a special purpose for
the goods; (2) defendant knew or had reason to know of that purpose; (3) defendant
knew or had reason to know that the plaintiff/buyer was relying on the seller’s superior
skill to select goods that fulfilled that purpose; and (4) the plaintiff in fact relied on
defendant’s superior skill.571
PFF does not challenge the first two elements under consideration: TCI had a
special purpose for the panels, and PFF knew or had reason to know of that purpose.
PFF argues no evidence supports TCI’s contention that it relied on PFF’s superior skill
to select the panels, or that PFF had reason to know of such alleged reliance.572 The

570

D.I. 222 at 14 (citing D.I. 243-1, Stip. Ex. 48 (General Conditions) § 3.5 (“The
Contractor warrants to the Owner, Construction Manager, and Architect that materials
and equipment furnished under the Contract will be of good quality and new . . . [and]
that the Work will conform with the requirements of the Contract Documents . . . .); D.I.
243-3, Stip. Ex. 140 (Supplemental General Conditions) § 3.5 (reciting additional one
year warranty requirements).
571
Atamian v. Ryan, C.A. No. 03C-12-038(RBY), 2006 WL 1816936, *4 (Del.
Super. June 9, 2006) (citation omitted).
572
D.I. 206 at 2 (¶ 1), 4, (¶¶ 8-11), 18.
133

court determines that questions of fact on these issues precludes summary judgment
on TCI’s breach of implied warranty claim against PFF.
PFF does not dispute that it was one of only two acceptable manufacturers of
the panels,573 thus at least leading to a reasonable question as to whether PFF had
reason to know that TCI was relying on PFF’s superior skill to provide panels that
fulfilled their purpose in the Project. W hether TCI relied on that skill is at issue with, for
instance, PFF’s recommendation, or not, to make V-Channels in the panels, a decision
implicated in the panel deformations. PFF argues the evidence shows its product data
made TCI aware that making V-Channels in the panels was recommended to relieve
stress when they are subjected to a temperature differential that could cause warping of
the panels.574 For its part, TCI submits deposition testimony which states it relied on
that PFF advised against making V-Channels in the panels. 575
The court, therefore, denies PFF’s motion for summary judgment on TCI’s
implied breach of warranty claim.
TCI contends PFF’s motion for summary judgment on its common law
indemnification and contribution claim should survive summary judgment because DSU
asserted a negligence claim against both TCI and PFF, and those claims have yet to be
adjudicated.576 TCI also argues that, while no adjudication has been made, and
therefore no payments made by TCI, that does not bar TCI from pursuing contribution

573

See D.I. 195, Stip. Fact ¶ 10.
D.I. 206 at 18.
575
D.I. 222 at 14 (citing D.I. 243-1 (Thomas Dep.) at 93:9-94:3; 104:22; 234:16574

25.).
576

Id. at 15.
134

from PFF under Delaware’s Uniform Contribution Among Tortfeasors Law, 10 Del. C.
§ 6301 et seq. (“UCATL”). 577
TCI and DSU have recently dismissed their respective claims against each
other.578 The court has granted summary judgment in favor of PFF and Czar, on DSU’s
tort claims against each. Those claims are now adjudicated. Section 6301 requires the
establishment of joint tortfeasor status.579 Dismissal of DSU’s tort claims against PFF
and Czar, and DSU’s dismissal of its claims against TCI, means no joint tortfeasor
status can be established.
Thus, PFF’s motion for summary judgment on TCI’s common law indemnification
and contribution claim is granted.
TCI concedes to summary judgment in favor of PFF on its Unjust Enrichment
and Contractual Indemnification claims against PFF.580 Thus, the court grants PFF’s
motion for summary judgment on those claims by TCI against PFF.

577

Id.
D.I. 257.
579
See Builders & Managers, Inc. v. Dryvit Sys., Inc., 2004 WL 304357, at *2
(Del. Super. Feb. 13, 2004) (“The right to contribution is triggered when it is appropriate
for liability to be apportioned among codefendants. In Delaware, contribution is
governed by the UCATL which provides the parameters for determining when
contribution is appropriate and how it is to be decided. The inherent requirement is that
the parties are joint tortfeasors who share a “common liability.”) (citations omitted); New
Zealand Kiwifruit Mktg. Bd. v. City of Wilmington, 825 F. Supp. 1180, 1186 (D. Del.
1993) (“Indispensable to a joint tortfeasor relationship is a ‘common liability’ either ‘joint’
or ‘several’ that two or more parties have to the person injured. Without this dual liability
. . . no right of contribution can exist.”) (omission in original) (citation omitted).
580
See D.I. 222 at 15 n.7 (“As it is now undisputed that Thomas and PFF are
parties to express contract, Thomas does not object to the dismissal of its unjust
enrichment claim. Thomas likewise recognizes that proscriptions contained in 6 Del. C.
§ 2704 apply to the contractual indemnification provisions at issue in this case.”).
578

135

II.

CONCLUSION–PFF and TCI Motions for Summary Judgment
For the reasons discussed above:

I.

Precision Foam Fabricator’s Motion for Summary Judgment against Delaware
State University and Thomas Company, Inc. (D.I. 205) is:
A.

GRANTED as to DSU’s Count I (Breach of Contract); Count III
(Negligence); and Count IV (Unjust Enrichment);

B.
C.

GRANTED as to TCI’s claims for Unjust Enrichment; Common Law
Indemnification and Contribution; and Breach of Express Warranty; and

D.
II.

DENIED as to TCI’s Breach of Contract claim against PFF.

DENIED as to TCI’s Breach of Implied Warranty.

Thomas Company, Inc.’s Motion for Partial Summary Judgment against
Precision Foam Fabricators, Inc. (D.I. 207) is:
A.

GRANTED on its Breach of Contract claim against PFF.

B.

DENIED on its request to sever its Breach of Contract claim.

C.

DENIED as to the specific amount of damages TCI seeks against PFF.

An appropriate order shall issue.
November 19, 2020

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge

136